I often try to explain to my friends how outdated our immigration law system is and how it does not reflect our present-day reality. Technology has advanced almost incomprehensibly fast in the more than a generation since the last overhaul of our immigration laws and our society has changed immensely as well. But immigration law is weedy and it’s sometimes hard to explain the impacts, so let me give you an example from the news.

Under our immigration laws, a child born outside of the United States acquires citizenship at birth if he or she was born in wedlock and if at the time of birth: (A) one parent is a foreign national and the other parent is a U.S. citizen (USC); and (B) the U.S. citizen parent was physically present in the U.S. for at least five years, including at least two years after 14 years of age.  The rules for a child born abroad out of wedlock to one USC parent is a much different process, so a birth to married parents is a very important distinction.

Simple enough, right? Not quite. Thankfully, we now live in a nation where marriage is no longer defined as exclusive to couples involving a man and a woman.  The fall of Section 3 of the Defense of Marriage Act (DOMA) in 2013 legitimized marriage between same sex couples, ushering in an era of marriage equality that was long overdue.

As a result, you would think that the concept of “wedlock” for purposes of citizenship determinations would take the same meaning and be applied the same to same-sex married couples as it applies to different-sex married couples.  Shouldn’t a child be deemed born “in wedlock” regardless of the parents’ gender, as long as the parents were lawfully married at the time of the child’s birth?

As is often the case, the reality is a bit different. If a different-sex couple seeking a certificate of citizenship for a child born abroad appears at an interview and presents a birth certificate confirming that they are the lawful parents of the child and a marriage certificate which shows they were married at the time of the child’s birth, the officer will typically probe no further and simply apply the citizenship standards associated with a child “born in wedlock.”  But insert a same-sex couple into that exact scenario, and the requirements are different. In this situation, the government applies the “out of wedlock” standard and subjects the parents and child to a DNA test to determine the biological connection between the child and the parents.

Our laws haven’t caught up to our reality, and because of this, a lot of unnecessary heartache has ensued. Take this recent case for example. Ethan and Aidan are twins who were born in Canada to Elad and Andrew, a same-sex married couple. Elad is a foreign national and Andrew is a USC. Elad and Andrew were married when the twins were born. Both Elad and Andrew are the lawful parents of the twins, as both are listed as parents on the twins’ birth certificate.  Furthermore, Elad and Andrew each individually inseminated donor eggs, while married, and the same surrogate mother carried the twins to term.

These twins were, by definition, born in wedlock.  Moreover, one of the parents, Andrew, is a USC who also meets the physical presence requirement in that he was in the U.S. for at least five years, two of which were after he turned age 14.  All requirements have been met and the children should acquire U.S. citizenship at the time of birth.

And yet, the government proceeded with the citizenship determination and required a DNA test as if the children were born out of wedlock. Why is this the case when the facts state otherwise?  The only reason is that Elad and Andrew are a same-sex married couple.

But the inequities and outrageousness don’t end there. These two baby brothers aren’t considered “brothers” by the government. In the end, Aidan acquired citizenship because Andrew, the USC, used his sperm to fertilize the egg.  No such luck for Ethan who was denied citizenship because the DNA test showed that Elad’s sperm fertilized his egg.

This result is absurd and shocks the conscience.  Whether one is born “in wedlock” or “out of wedlock” must be applied consistently regardless of the gender of the parents, and children born to same-sex couples must be treated the same as children born to different-sex couples.  To hinge the outcome of the case on a biological connection, such as what happened with Ethan and Aidan, shows just how far behind our nation is when it comes to parental rights.

This is just one example of how our immigration laws have not kept up with the times. This injustice and inequality need to end.