“Birth Tourism” and U.S. Citizenship

Recent news reports show the “birth tourism” scam is alive and well, and has popped up again in Southern California. While the idea of coming to the U.S. to give birth and thereby qualifying a newborn child for U.S. citizenship is not new, the large scale and open marketing of current tour group-style operations based in China is an audacious and unwelcome attempt to exploit a loophole in America’s immigration and nationality laws.

There is a local angle here in Hawaii also, reports say that these China-based tour operators are routing their clients to Southern California via Honolulu, in the belief that our Customs and Border Protection agents are more lenient. This is doubtful. From professional experience as an immigration lawyer I can say that our Honolulu CBP staff is well-trained and well-led. What is different is the very high percentage of Honolulu arrivals coming specifically for tourism, and the high percentage of those now coming from Asian countries.

Under existing law, there is no violation in coming to the U.S. while pregnant. And, while the historical rationale for birthright citizenship has been questioned, there does not seem to be any consensus that this principle, enshrined in our Constitution, should be abandoned. Ergo, we have a loophole. That does not mean that there is no way to deter and discourage commercial exploitation of our citizenship system, it means that Congress needs to get over its longstanding gridlock on immigration and update our laws to fit the modern world. What we have instead is the President stretching the boundaries of executive authority and a recalcitrant Congress making irresponsible threats to close down the Department of Homeland Security.

There is no need to ban all pregnant women from coming to the U.S., there are plenty of situations were that would be unwarranted and counterproductive. For example, Louisiana Governor and presidential aspirant Bobby Jindal proudly recounts his pregnant mother coming to America from India while carrying him in utero, soon to become a natural-born U.S. citizen. U.S.-born children of legitimate immigrants, exchange students, working visa-holders, visiting professors, and yes, even the occasional tourist, do little to harm our immigration and nationality regime.

Outright commercial exploitation, essentially selling American citizenship for profit, is another thing altogether, and should be against the law. Currently it is not, and since Congress makes our laws, it’s long past time for them to quit the partisan bickering and get serious about governing, starting with some common-sense reforms to our immigration and nationality laws.