President Trump ignited a flurry of activity with his executive order attempting to stop “birthright citizenship” — the constitutional provision that all children born on U.S. soil (including the territories) automatically become U.S. citizens. Based on the first judge to rule on Trump’s EO, it appears the administration faces an uphill battle in the courts. But whatever the courts decide on birthright citizenship, Americans should at least be able to agree that the practice of “birth tourism” is an abuse of the system and should be stopped.
Birth tourism is when pregnant women from other countries enter the United States for the purpose of having their child, who under the 14th Amendment automatically becomes a U.S. citizen, usually returning home thereafter.
For example, the health policy news site Fierce Healthcare wrote in 2009, “Of late, a growing number of well-to-do Mexican mothers have been coming to the U.S. to have their babies, who automatically get American citizenship since they were born on U.S. soil.” One Arizona medical facility marketed “a ‘birth package’ offering cutting edge technology, cozy settings and the chance for mothers to grant their babies American citizenship.” The facility even posted its (2009) prices: $2,300 for a vaginal birth and $4,600 for a c-section.
While Mexican women may have been the primary offenders in the past, the Center for Immigration Studies (CIS) reported in 2020 that the list of countries has expanded to China, Taiwan, Korea, Nigeria, Turkey, Russia and Brazil. It adds that birth tourism has grown dramatically in some of the U.S. territories, where Chinese citizens can easily obtain visas to visit.
A senior policy director at Georgetown Law’s O’Neill Institute wrote in 2018, “Women from foreign countries, mainly China and Russia, are paying tens of thousands of dollars to temporarily relocate to the U.S. during their pregnancy in order to give birth in the U.S. and thereby guarantee U.S. citizenship for their child.”
The Wall Street Journal adds, “Companies in China have attracted attention in recent years for advertising such services, and airlines in Asia even started turning away some pregnant passengers they suspected of traveling to give birth.”
The federal government tried to limit birth tourism during the first Trump administration. The U.S. Department of State announced in January of 2020, “[T]he Department is amending its B nonimmigrant visa regulation to address birth tourism. Under this amended regulation, U.S. consular officers overseas will deny any B visa application from an applicant whom the consular officer has reason to believe is traveling for the primary purpose of giving birth in the United States to obtain U.S. citizenship for their child.”
It’s unclear how strictly this order has been enforced, especially given President Biden’s lax approach to immigration. But Trump wants to clamp down on the practice again by tightening the criteria to qualify for a tourist visa, the Journal reports.
How many births are we talking about? In 2020 the CIS estimated “that birth tourism results in 33,000 births to women on tourist visas annually.” While that’s a small percentage of the estimated 4.4 million child-citizens born to illegal immigrants, according to the Pew Research Center, it’s still a significant number.
To be sure, there are some key differences between birth tourism and those residing in the U.S. illegally who take advantage of birthright citizenship. Women engaging in birth tourism may be from upper-income families who enter the U.S. or its territories legally on a visa. And those returning with their child to their home country are unlikely to become a drain on taxpayers by signing up for various benefits available to children.
Then why do these women go to the trouble? Apparently, the hope is since their child is a U.S. citizen, they would receive preferential treatment in the future if or when they seek to move to the U.S. But even if one can sympathize with their goal, birth tourism is a flagrant abuse of the 14th Amendment’s birthright citizenship provision.
The courts, and ultimately the Supreme Court, will determine the merits of Trump’s executive order, but most legal scholars think ending birthright citizenship will take either legislation or a constitutional amendment.
But even if the courts uphold the 14th Amendment’s long-accepted meaning of birthright citizenship, that may not extend to birth tourism.
The Supreme Court permits exceptions and limitations to many of our constitutional rights. You have a Second Amendment right to own a gun. But the courts allow certain venues — e.g., government buildings, schools, commercial airplanes and sports facilities — to prohibit bringing a gun on the premises.
The best solution is for Congress and the Trump administration to pass comprehensive immigration reform, which could include any limitations or restrictions Congress wants imposed on birthright citizenship. Unfortunately, comprehensive reform is unlikely until Republicans believe they have regained control of the borders. And that may take a while.
Merrill Matthews is a public policy and political analyst and the co-author of “On the Edge: America Faces the Entitlements Cliff.” Follow him on X@MerrillMatthews.
