Birthright Citizenship in the United States

Introduction

According to theEncyclopedia of the American Constitution, the fourteenth amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Congress has expanded the range of persons who can claim birthright. See also the entry about Citizenship by Naturalization in this legal Encyclopedia.

Hiring surrogates in the United States

by Pamela MacLean

In relation with Birthright Citizenship, Family law practitioners are seeing more clients from abroad hire surrogates in the United States to deliver babies with American citizenship.

Babies born in the United States are automatically citizens under the Fourteenth Amendment. So parents from abroad who hire surrogates here are clearing a much faster route for their families to permanent residency and eventual citizenship than is normally available to foreign nationals. “The intent is to take the baby back to China to raise, and possibly to come back later for a [U.S. college] education,” says Jeang. “It is also very difficult to transfer money out of China, but you can always give money [directly] to your kids.”

New parents who have hired a surrogate typically travel to the United States on tourist visas to pick up their baby and then return home after securing a U.S. passport for the infant.

“They don’t have to say they are here to pick up a child from a surrogate; that’s nobody’s business,” says William W. Handel, an Encino attorney who founded and runs the Center for Surrogate Parenting. Handel says more than half the surrogate pregnancies his company arranges now involve foreign couples.

The rise of a very wealthy class in China, coupled with California’s 1993 state Supreme Court ruling recognizing the rights of “intended” parents as superseding those of surrogates, has made the state a hot spot for surrogacy. (See Johnson v. Calvert, 5 Cal. 4th 84 (1993).) Almost half the states ban or limit the practice, or they consider surrogacy contracts unenforceable.

At $100,000 to $200,000 – which includes legal fees, insurance, medical care, and $30,000 to $45,000 for the surrogate – hiring a surrogate is still much cheaper than taking another fast track to legal residency: paying $500,000 or more for an entrepreneur visa.

Another reason some foreign couples hire American surrogates is to help their children dodge the draft at home, says Mark Krikorian, executive director of the Center for Immigration Studies, a group in Washington, D.C., that supports tighter immigration controls. He would like the United States to give citizenship to foreign parents’ babies only if children spend their first ten years here, but that’s not likely to happen.

“A child born in the U.S., regardless of who the parents are or how the gestational mother became pregnant, is a U.S. citizen,” says Gabriel J. Chin, an immigration law professor at UC Davis. “If the mother is undocumented or a tourist, the child is [still] a U.S. citizen. … There are issues of custody, which are complicated by the citizenship and residence of the parents. But that is a different issue.”

Reports in 2011 of the growth of “birthing tourism” sparked national headlines after zoning officials shuttered three unlicensed birthing centers in San Gabriel that were operating as unlicensed birthing centers for women from China. That case, however, didn’t involve surrogates. Nor did the one related federal criminal case that has so far been brought – in Saipan, a U.S. commonwealth. (U.S. v. Chen, No. 12-0026 (D. N. Mar. I. filed Mar. 11, 2013).)

More about Surrogacy and gestational surrogacy in the Encyclopedia here.

Birthright Citizenship

Birthright Citizenship in the United States

Introduction

Hiring surrogates in the United States

Resources

See Also