Congratulations, You're Having Twins! But Only One is a US Citizen: How Constitutional Avoidance Should Be Used to Avoid Discrimination Against Same-Sex Couples Through the Denial of Birthright Citizenship

Assisted Reproductive Technology has become a widely used way to start a family around the world, specifically for same-sex couples. With it have also come emerging legal problems regarding parentage and birthright citizenship. Currently, for a child born abroad to be granted birthright citizenship in the United States, they must either be "born in wedlock" and have one parent who meets the subsequent requirements or be a child born "out of wedlock" and have a biological father that meets the statute requirements. The State Department, following the policies laid out in its internal Foreign Affairs Manual, has determined that a child born through Assisted Reproductive Technology to a same-sex couple qualifies as a child born "out of wedlock" because the child is not biologically related to both parents in the marriage. This Note argues that this policy raises grave constitutional concerns because it violates the rights of same-sex couples and their families under the Fifth Amendment. Thus, federal courts should apply the canon of constitutional avoidance, finding that the statute does not require a biological relationship, in order to avoid constitutional infirmity.