The United States President Donald Trump has told HBO that he plans to terminate the right to US citizenship to babies born in the US to immigrants and non-citizens.
Mr Trump said he was seeking legal counsel to determine if he was able to bypass Congress and end birthright citizenship through an executive order. He said:
“They’re saying I can do it just with an executive order.”
The President said that the US was the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States. As the US broadcaster NPR has pointed out- it’s not. It’s one of 30 countries allowing children born there to become citizens, including Canada and Mexico.
About 50 babies a year are born to Australian intended parents in the United States via surrogacy. Currently, the babies are entitled – at birth – to US citizenship. This is because of the 14th Amendment to the US Constitution. That amendment starts:
“All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
The Amendment occurred after the US Civil War to guarantee that former slaves and the children of slaves were US citizens. The Amendment is frequently before the courts. There is rarely a surrogacy law conference I go to in the US where the subject of the 14th Amendment is brought up in conference presentations or discussions amongst delegates.
House Speaker Paul Ryan said such a move would be “unconstitutional” and “Well, you obviously cannot do that. You cannot end birthright citizenship with an executive order.”
NPR reports that Ryan noted any change to a constitutional amendment requires an act of Congress, adding:
“We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as Conservatives we believe in the Constitution…I’m a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”
One of the complications for Australians undertaking surrogacy in the United States is that if the executive order issues and is not stayed or frozen by the courts, then the children being born in the United States will not be recognised as US citizens. They will not have in fact any citizenship at all unless and until an application for Australian citizenship is successfully made to the Australian Government. Typically, Australian citizens undertaking surrogacy in the United States obtain US citizenship for their child, and then travel back to Australia where the child applies for and obtains Australian citizenship. The change, which my colleagues in the US say is unlikely to succeed, might mean that Australian citizens caught up in the mess may have to apply for Australian citizenship in the United States.
To travel to the United States, Australians typically do so on ESTA under the visa waiver program, allowing Australians to say in the US for a maximum of 90 days. According to the Department of Home Affairs, 25% of citizenship by descent applications are not disposed of within 2 months and 10% are not disposed of within 4 months. Intended parents and their children might be caught between a rock and a hard place of the delays in the application for citizenship by descent not being decided by the time that their visa to the US expires.
What President Trump has put forward may be just electioneering ahead of the mid-terms, and probably should not be overblown, but who can say?