Deals could become legally fraught
Bioethics in American politics. Donald Trump’s vow to remove the right to citizenship to babies born in the United States to immigrants and non-citizens has an unexpected bioethical angle. As Australian surrogacy lawyer Stephen Page points out, this could put a dent in the booming US surrogacy market.
At the moment, a baby born in the US to a surrogate mother automatically bcomes a US citizen under the 14th Amendment to the Constitution. This makes commercial surrogacy in the US a popular market with wealthy foreigners, especially Chinese. “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,” says Page.
The 14th Amendment was introduced in the Reconstruction Era to protect slaves. In 1857, before the Civil War, they had been deemed not to be citizens by the US Supreme Court – “they had no rights which the white man was bound to respect,” according to Chief Justice Roger Taney.
As Page points out, if Trump carries through with his threat, the consequences for the surrogacy industry will be dire:
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.
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