Parents sue after twin sons given different citizenship status

LOS ANGELES (KABC) -- Ethan and Aiden Dvash-Banks are brothers born minutes apart from the same surrogate mother.

But only one boy is allowed to be a U.S. citizen.

Their parents received a passport for Aiden on the same day they received the State Department's rejection letter for Ethan.

That was crushing to their parents, Elad and Andrew Dvash-Banks.

"Only other parents could understand what it feels like when someone tells you one of your kids is different than the other," Elad said. "It's very hard. It affects us every day."

Elad and his husband Andrew fathered the two boys using a surrogate mom, with sperm from each father going to a different boy. The couple had married in Canada and were living there at the time, after gay marriage had been banned in the United States.

When it came time to apply for their sons' passport, the U.S. State Department made a distinction based on the citizenship of each child's biological parent: Andrew is a U.S. citizen and Elad is from Israel, although he is a legal U.S. resident through the marriage.

Now the boy fathered with Andrew's sperm is considered a U.S. citizen and the boy fathered with Elad's is not.

"The fact of the matter is that both of them are our kids," Elad said. "We are the parents. Both of us are the parents of both kids. The genetic composition shouldn't be a factor at all. Not for the State Department, definitely not for us or anyone else," Elad said.

Elad and Andrew are suing the State Department, claiming gender discrimination.

"If Elad was a woman and walked into an embassy or consulate, this would not have happened," said Jackie Yodashkin with the group Immigration Equality which is supporting their fight.

Ethan, now 16 months old, is in the United States on a tourist visa. And that visa has expired.

Ethan could become naturalized, but his dads want more. They want him to be considered a citizen by birth.

They hope public pressure will get the State Department to change its policy.

"I want to tell both of my kids you both can be whatever you want. Aiden you can be a U.S. president if you choose and I want to be able to tell Ethan the exact same thing."