Surrogacy and Birthright Citizenship in the United States

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Surrogacy and Birthright Citizenship in the United States

Unlike in many other countries, a child born in the United States is a citizen of the United States, regardless of its parents’ citizenship status. Automatic citizenship for any person born in the U.S. is rooted in the Constitution, which states in its 14th amendment, “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.”

What does this mean for children born to surrogates in the United States when their legal parents are not U.S. citizens and do not reside here? Quite simply, they are citizens of the United States. It does not matter that they might only spend a few days or weeks of their lives living in the United States, and it is irrelevant that their parents maintain citizenship in another country. 

While President Trump’s desire to end birthright citizenship may make headlines and raise alarm, the president of the United States does not have the ability to amend the terms of the Constitution. The Constitution is the supreme law of the United States, and as such, amending it is extremely difficult. The process is complicated, with checks and balances to ensure that minority opinion cannot take away rights and liberties contained within it.

Furthermore, as explained in a recent New York Times article, the requirement that one be subject to the jurisdiction of the United States in order to be granted citizenship at birth “…creates a very narrow exception that today essentially applies only to children of accredited foreign diplomats. Other than that, the citizenship or immigration status of a person’s parents has not been held to have any effect on this right.” 

This should provide comfort to foreign intended parents hoping to pursue surrogacy in the United States with the expectation that their children be U.S. citizens. Although there may be some efforts to expand the relevance of the jurisdiction requirement, there is no wide-spread consensus that the citizenship status of a child’s parents should have any bearing on the citizenship rights of their U.S.-born children.