Posts Tagged ‘Birth Tourism’

Anchor babies, birth tourism and China

August 27, 2015

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.
              ==14th Amendment to the U.S. Constitution

Yes, it’s true, as Donald Trump said, that there is such a thing as “anchor babies” or, to use a more polite term, “birth tourism,” and it also is true, as Jeb Bush said, that most come from China and other Asian countries, not Mexico.

anchorbabies-300x201Here’s how it works.  Chinese travel agencies arrange, for a fee, for Chinese couples to legally visit the United States and for the mother to give birth in a U.S. hospital.  Under the 14th Amendment, those children are U.S. citizens.  Under current U.S. law, those children, when they reach the age of 21, may apply for green cards for their parents to immigrate to the United States and eventually become U.S. citizens.

An unauthorized immigrant couple could do the same thing, but I don’t have any information on whether any or how many actually do.  The possibility exists even if they didn’t originally intend to have the “anchor baby”.

These practices may not be a serious practical problem, at least not as yet, but they don’t sit well with me.  They are a distortion of the intent of the Fourteenth Amendment and of U.S. immigration law.

The Fourteenth Amendment was enacted in 1868 so as to guarantee citizenship rights for newly-freed slaves and to reverse the 1857 Dred Scott decision, which held that African-Americans had no rights under the Constitution.  The question of children of authorized immigrants did not arise, because the United States had no restrictions on immigration until the Chinese Exclusion Act of 1882.

However, the U.S. Supreme Court decided that Wong Kim Ark, who was born around 1871 to Chinese parents legally in the United States, was a U.S. citizen and could not be barred from re-entering the United States after a trip abroad.

One solution would be to repeal or amend the Fourteenth Amendment.  This would be a difficult thing to do and also potentially dangerous unless the new amendment is worded very carefully.  I wouldn’t want to give the federal government the power to deprive me and those I care about of our citizenship.

It might be possible to pass a law or file a lawsuit to clarify the meaning of “subject to the jurisdiction thereof.”  The original Fourteenth Amendment did not apply to Indian tribes or to the children of foreign diplomats because they were not subject to U.S. law.  You could make an argument that unauthorized immigrants are not subject to the jurisdiction of U.S. law, either.

This of course would not apply to Chinese and other “birth tourism” for legally authorized visitors to the United States.

Another possible approach would be to change U.S. immigration law as it applies to family reunification.  My understanding is that it was intended to apply to relatives of U.S. citizens who were stranded in refugee camps, not everyday citizens of foreign countries who think they can do better in the USA.   It would be a shame to stop this, but it is a practical way of eliminating “anchor babies” and “birth tourism”.

(more…)