The Trump administration is once more attempting to limit birthright citizenship and restrict foreigners giving birth in the U.S. Two executive orders issued seek to redefine who can become an American. President Donald Trump, citing a Supreme Court decision from June, stated that these orders come with adjustments to comply with legal requirements. Despite the changes, legal challenges are expected.
Birthright Citizenship Under Scrutiny
The 14th Amendment of the U.S. Constitution ensures citizenship for anyone born on American soil, with specific exceptions. Trump’s new orders focus on further limiting automatic citizenship for children born to foreign diplomats or persons considered as “alien enemies.” Current U.S. immigration laws already exclude babies of foreign diplomatic officials from birthright citizenship benefits.
The executive orders outline new categories for exemptions. These include children born through “birth tourism,” and those whose parents are linked to foreign embassies or groups deemed terrorist organizations. Addressing the issue, César Cuauhtémoc García Hernández, a law professor at Ohio State University, questioned the feasibility of identifying children born to members of such organizations.
Surrogacy and Citizenship
The executive orders have also touched upon citizenship through surrogacy. García Hernández highlighted the absence of mention about surrogacy in the 14th Amendment or Supreme Court interpretations of it. This new provision may prompt further legal interpretations and questions.
Defining Birth Tourism
Trump’s orders define “birth tourism” as arriving in the U.S. on a nonimmigrant visa explicitly to give birth. Previously considered fraud, this definition grants immigration officers discretionary power to deny entry to suspected pregnant women. Despite Trump’s claims of hundreds of thousands involved, experts believe the numbers to be overstated, with data from the Centers for Disease Control and Prevention in 2024 showing nearly 9,600 births to foreign mothers based outside the U.S.
The Center for Immigration Studies estimates between 20,000 to 26,000 birth tourists come to the U.S. annually.
Crackdown on Birth Tourism Operators
Efforts to prosecute operators facilitating birth tourism are not new. The orders accuse these operators of deception, promising citizenship and public benefits without delivering. Such operators allegedly mislead consular and border officials to aid clients in entering the U.S. The Republican Party supports these prosecutions, citing instances such as Texas hospitals promoting birthing services in Mexico.
Anticipated Legal Challenges
When asked about legal survivability, Trump deferred to White House staff secretary Will Scharf, who emphasized legal validation and targeted measures against birth tourism as compliant with Supreme Court rulings. However, advocacy groups like the American Civil Liberties Union insist the 14th Amendment guarantees birthright citizenship. Cody Wofsy, deputy director at ACLU’s Immigrants’ Rights Project, emphasized that executive orders cannot change this constitutional guarantee.