The idea of "birth tourism" — it's also known as "maternity tourism," and defined as travel to the U.S. for the purpose of having a child on American soil — is, to the growling anti-immigration crowd, utterly enraging. It's a back-door entry into U.S. citizenship, they say. It's happening too much. It's ruining the country.
But what really irks the tight-borders bunch, and has for years, is that birth tourism — maternity tourism, whatever you want to call it — is perfectly, Constitutionally protected, 100 percent legal.
Thousands and thousands of foreign nationals, many from China and Russia, come to the U.S. every year on travel visas in order to take advantage of the 14th Amendment to the Constitution, which states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."
That means that no matter where you're from or what your intentions are, no matter what you've done in the past, if you give birth in America, jus soli (or "law of the soil") applies. Your child is, with only a few exceptions, automatically a U.S. citizen.
The History of Birthright Citizenship
The 14th Amendment was passed in 1868 to grant citizenship to former slaves, who had been denied the right in the Supreme Court's pre-Civil War Dred Scott decision. Later, the Supreme Court, in a landmark 1898 case involving a child born in the U.S. to Chinese parents, expanded that "birthright citizenship" to anyone born on American soil.
The whole idea of birthright citizenship is different here than in many other countries, where citizenship is based on lineage. Former Clinton-era assistant attorney general Walter Dellinger explained it this way to NPR in 2010:
The idea of "born here, citizen here" has been challenged countless times over the years — especially from those who object to someone who enters the country illegally having a baby who is automatically a citizen — including through a proposed amendment to the Constitution in 2011. Donald Trump made changing the 14th Amendment, or somehow addressing birthright citizenship through legislative means, a platform of his immigrant-targeted campaign.
"Every congressional term, some Republican in the House, probably also in the Senate, introduces a law intended to steal that birthright tradition," says Anna O. Law, a professor of political science at Brooklyn College (BC) and the author of "The Immigration Battle in American Courts." Law also holds the Herb Kurz Chair in Constitutional Rights at BC. "It's never prevailed. It's a popular talking point for anti-immigrant prescriptionists."
And so it is that birth tourism thrives. A non-American woman comes to the country legally, on a travel visa of some sort. She goes through customs. And here gives birth to a bouncing baby U.S. citizen.
Putting the Brakes on Birth Tourism
Right now, the coast is almost clear for non-citizens to come to the U.S. to have a baby. First, of course, a tourist has to go through an interview at an American consulate in her home country before being granted a visa to enter the U.S. Lying in that interview is basis for denial of entry and is considered fraud.
"If the policymakers think this is a problem, 1), pass a law; in order to get a visa, you can't be coming here for the sole purpose of [having a baby]. Or 2), you deal with it at the interview," Law says. "There are other ways of handling it that don't require a constitutional amendment. When you use a constitutional amendment, it's using an elephant gun to kill a mosquito."
If a mother-to-be is granted a visa, she still has to make it through Customs here. Generally speaking, the U.S. does not bar pregnant tourists from entering the country as long as they can prove they have enough insurance or money for medical bills. But ...
"Although there are no specific regulations prohibiting pregnant foreign nationals from entering the U.S.," according to U.S. Customs and Border Protection website, "entry is allowed or denied at the discretion of the admitting U.S. Customs and Border Protection (CBP) Officer."
Scaring away non-native parents-to-be, as Law suggests, is one way that could deter birth tourism. The idea is to tell potential tourists the negatives involved in having a baby on American soil: The fact that, as a citizen, the baby is "subject to the jurisdiction" of the U.S., meaning (for example) taxes eventually will be gathered, social security wages must be paid, and the child will someday have to register with Selective Service and would be eligible to be conscripted into the U.S. armed forces if a draft is reinstituted.
Still, many birth tourists see a future in which their child is eligible to be raised in the American educational system, enjoy Western culture and apply for government benefits.
Birth tourists, by definition (unlike illegal aliens), take their newborn, complete with U.S. passport, back to their home country and wait for a time they can come to the U.S. legally. At 21, American citizens can bring family members to live in the U.S. with them in what is known (and decried by anti-immigration forces that have become increasingly vocal under the Trump administration) as "chain migration."
The plan sounds risky, but parents of hundreds of thousands of kids — the numbers differ — are willing to try.
"You're really telling me this is a strategy? That's a long, long game," Law says. "You're going to drop an anchor 21 years in advance and hope things work out?
"I think for many of these parents, it's an escape hatch. In case something goes wrong in their home country. This is a way for them to get out. But the thing is, a lot of things can happen in 21 years. ..."