Overview
The Trump administration is seeking to reinterpret the constitutional right of citizenship for children born on U.S. soil. Currently, President Trump’s executive order proposes that children born to parents illegally residing in the U.S. would no longer qualify for birthright citizenship. However, this reinterpretation is unlikely to affect intended parents from other countries engaging in surrogacy in the U.S., as they are not residing in the U.S. illegally.
Litigation and Legal Standpoint
Litigation has already been initiated to block this executive order on the grounds that birthright citizenship under the U.S. Constitution is not conditioned on the legal status of the parents. The U.S. State Department being asked to stop issuing passports to those legally entitled is a violation of federal law.
For over 150 years, the 14th Amendment has been interpreted to grant citizenship to those born on American soil, irrespective of the parents’ immigration status. Until the U.S. Constitution is amended, all children born in the U.S. will continue to receive citizenship and passports.
Constitutional Amendments: Process and Challenges
Amending the U.S. Constitution is a challenging and rare process. It requires:
- A proposal by Congress with a two-thirds majority vote in both the House of Representatives and the Senate OR by a constitutional convention called by two-thirds of State legislatures.
- Ratification by three-fourths of the States (38 out of 50).
Given the entrenched nature of birthright citizenship in the Constitution since 1868, achieving the consensus required to alter this provision is extremely unlikely.
Implications for Surrogacy
Even if the executive order is legitimized, it targets children of undocumented parents residing in the U.S. This does not apply to intended parents from other countries who come to the U.S. for surrogacy, as they do not fall under the category of undocumented immigrants.
United States vs. Wong Kim Ark: A Historical Precedent
One potential approach the Trump administration could take is challenging the 1898 Supreme Court ruling in United States vs Wong Kim Ark. This ruling affirmed that a man born in the U.S. to legally admitted Chinese parents was a U.S. citizen. Birthright citizenship critics argue the ruling did not address the children of illegally residing parents. However, this does not impact intended parents in surrogacy cases, as they are not immigrants to the U.S.
Contingencies for Citizenship and Passport Issuance
In the very unlikely event that all legal analyses fail and the executive order impacts children born via surrogacy:
- Children could obtain a Laissez Passer from their home country’s embassy or consulate in the U.S. and travel home on that document.
- This method was effectively employed during the early days of the COVID pandemic when the U.S. Passport Office was closed.
Conclusion
While the Trump administration’s reinterpretation of birthright citizenship raises significant legal and constitutional questions, it should not affect intended parents from other countries engaging in surrogacy in the U.S. The robust processes required to amend the Constitution, longstanding legal precedents, and alternative measures ensure that the impact on surrogacy remains minimal.
Village Law Group