In late January, the Trump administration announced new visa rules intended to discourage the practice of “birth tourism,” i.e., when a pregnant foreign woman travels to the U.S. so that her baby will be an American citizen. The practice is widespread; as this surprisingly balanced Associated Press article notes, the Center for Immigration Studies estimated that in 2012, around 36,000 foreign women gave birth in the U.S. and then left the country.
Under the new rules, pregnant applicants will be denied a tourist visa unless they can prove they must come to the U.S. to give birth for medical reasons and they have money to pay for it or have another compelling reason — not just because they want their child to have an American passport.
Officials said that consular officers will not be asking all female visa applicants of child-bearing age whether they are pregnant or intend to get pregnant. Rather, they said consular officers would ask the question only if they had reason to believe the applicant is pregnant and likely or planning to give birth in the U.S.
However:
Officials said the rule will not apply to foreign travelers coming from any of the 39 mainly European and Asian countries enrolled in the Visa Waiver Program, which allows citizens of those countries to come the U.S. without a visa for temporary stays. The rule will only apply to applicants for so-called “B” class visas that permit short-term stays for business or pleasure.
Russia and China are not participants in the visa waiver program.
Birth tourism is a lucrative business in both the U.S. and abroad. Companies take out advertisements and charge up to $80,000 to facilitate the practice. Many of the women travel from Russia and China to give birth in the U.S.
The Associated Press implicitly adopts the common assumption that the Fourteenth Amendment mandates birthright citizenship; i.e., the idea that any baby born on American soil is an American citizen, regardless of the circumstances. In fact, the Fourteenth Amendment needn’t require any such thing. The relevant provision, the purpose of which was to grant citizenship to newly-freed slaves, says:
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.
The Supreme Court could hold that children of (for example) pregnant Chinese women who visit the U.S. for a few weeks for the purpose of giving birth are not, as Chinese citizens, “subject to the jurisdiction” of the United States for purposes of that clause. Under standard rules of construction, “subject to the jurisdiction thereof” must mean something. If not that, then what?
The only Supreme Court case that, to my knowledge, has applied the Fourteenth Amendment to a child born of foreign parents in the U.S. emphasized that the parents were here legally. No Supreme Court case has ever held that the child of an illegal immigrant is a citizen under the Fourteenth Amendment. If birth tourism is illegal under the new rules, or is made illegal by Congress, the Court could classify babies born to briefly-visiting mothers in the same category with children of illegal immigrants as outside the realm of citizenship by birth under the Fourteenth Amendment. That would bring birth tourism to an end.
In the meantime, the administration’s new rules manifest a worthy intention, but whether they make much practical difference remains to be seen.
Notice: All comments are subject to moderation. Our comments are intended to be a forum for civil discourse bearing on the subject under discussion. Commenters who stray beyond the bounds of civility or employ what we deem gratuitous vulgarity in a comment — including, but not limited to, “s***,” “f***,” “a*******,” or one of their many variants — will be banned without further notice in the sole discretion of the site moderator.