January 25, 2022

Cutting the Gordian knot

Surrogacy is where bioethics, President Trump’s war on “illegals”, US-China hostility, California weirdness, IVF profitability, and constitutional law all meet. Here’s the drill.

Unlike many other states and countries, California permits surrogacy. So it has become a Mecca for gay couples, couples who want gender-balanced families, and couples from jurisdictions where surrogacy is illegal. Since surrogacy is illegal in China, many Chinese couples are California-dreaming, as well. Using an American surrogate has the added attraction for them of giving birth to a baby who automatically becomes a citizen under the 14th Amendment. This also makes it easier for its parents to stay in the US.

Mr Trump has said that he wants to end birthright citizenship. “We're 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…with all of those benefits,” he said last year. “It's ridiculous. It's ridiculous. And it has to end.”

The President has almost no chance of bypassing the 14th Amendment with an executive order, as he has threatened, and still less of repealing it. But why not ban commercial surrogacy? That will close a very big loophole in the law.

Michael Cook
Rather than repealing the 14th Amendment, why doesn’t Trump make commercial surrogacy illegal?
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