One loophole in President Donald Trump’s executive order banning birthright citizenship could permit Chinese nationals, along with other non-citizens, to continue obtaining U.S. citizenship for their children.
The order’s language leaves room for the growing international surrogacy industry — which allows intended parents from across the word to hire an American woman to carry their child to term — to continue operating as the newest means of “birth tourism.”
According to the most recent data from the American Society for Reproductive Medicine (ASRM), foreign nationals went through 4,713 “gestational carrier cycles” — or attempts to implant an embryo — in 2020, up from 2,758 in 2014. Chinese nationals make up the highest percentage of users, at 41.7%, per the data.
The precise number of children born to foreign nationals through surrogacy is unknown.
Trumps’ order, which has been put on hold by a judge but is widely expected to land at the Supreme Court, removes guaranteed citizenship for children born to parents illegally in the U.S. or on temporary visas.
“With surrogacy and donor arrangements, foreign nationals can use American egg donors, sperm donors, or surrogates to have a child born in the U.S,” Emma Waters, senior research associate at the Heritage Foundation’s Richard and Helen DeVos Center for Life, Religion and Family, told the Daily Caller News Foundation. “Under the EO’s current definitions, that child might still claim U.S. citizenship.”
Gray area in the order stems from questions surrounding the definition of mother and father, as well as the “biological progenitor,” in the context of surrogacy, Waters explained.
“For example, foreign nationals (predominantly from China) may be the intended and biological parents of the child, but if the child is born in the United States via an American surrogate, is the surrogate the ‘immediate…progenitor’ of the child?” she continued. “Moreover, what if the foreign nationals use an egg or sperm donor to create their child? In this instance, the ‘biological’ parent is also an American citizen. In either case, the child of foreign nationals—who intend to raise them fully in their own home country—may still gain U.S. citizenship, despite the EO’s efforts to curtain such abuses.”
Waters noted in a July report that there are “no federal laws” governing international surrogacy, recommending Congress step in to ban international surrogacy for foreign nationals, pass a law mandating accurate reporting and require agency’s track live births.
Following Trump’s order, some clinics issued guidance to concerned clients about their ability to gain citizenship for their babies.
Creative Family Connections, a surrogacy agency based in the Washington, D.C. area, noted its attorney team “immediately strategized” following the executive order. In one scenario, they suggested putting the surrogate on the birth certificate with the biological father would allow her to “bestow her US citizenship to the baby.”
“Then, we will immediately work to obtain a second birth certificate – either with both parents or with the bio dad only, depending on the country and country’s registration requirements,” the group wrote in its blog post.
Another California-based clinic, GSHC Surrogacy & Egg Donation, released a video on birthright laws, where attorney Robert T. Terenzio simply suggested an executive order reversing birthright citizenship would be “invalid” because it can only be changed through a constitutional amendment.
GSHC has dedicated staff for international clients who speak Chinese. Its website also offers a Chinese language guide teaching parents how to obtain a U.S. birth certificate, passport and social security card for their child.
GSHC is one of many California surrogacy clinics that offers Chinese-language services.
A bill to ban birthright citizenship introduced by Republican Senators Lindsey Graham of South Carolina, Ted Cruz of Texas and Katie Britt of Alabama on Wednesday also does not cover children born to foreign parents using an American surrogate.
Traditional birth tourism, where pregnant women travel to the U.S. for the purpose of giving birth, is addressed by a provision of the order requiring one parent to be a lawful permanent resident. Around 33,000 children are born annually to women who entered legally on tourist visas, according to the Federation for American Immigration Reform.
Just this week, a California woman was sentenced to nearly three years in prison for a birth tourism scheme she ran with her husband charging Chinese pregnant women tens of thousands of dollars for help giving birth in the U.S.
In 2023, an estimated total of 250,000 children were born in the U.S. to illegal migrant parents, according to the Center for Immigration Studies (CIS).
The White House did not immediately respond to a request for comment.
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