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?
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