The core argument advanced by President Donald Trump and other opponents of birthright citizenship is that it has facilitated widespread abuse of U.S. immigration laws — an argument that has been dramatically reinforced in recent years through the utilization of IVF and surrogacy procedures by foreigners.

A research paper published last year by the Heritage Foundation, titled “The New Face of Birth Tourism: Chinese Nationals, American Surrogates, and Birthright Citizenship,” details how the lax U.S. framework governing surrogacy has allowed foreign citizens — particularly Chinese nationals — to “rent a womb” from an American woman to gestate a baby created via in vitro fertilization. 

And, courtesy of the currently prevailing legal interpretation of the birthright-citizenship provisions of the14th Amendment, U.S.-born children resulting from these IVF and surrogacy arrangements automatically gain U.S. citizenship, even if neither of their biological parents are American citizens or U.S. residents. 

This high-tech “birthright tourism” adds another moral and legal dimension to a simmering dispute between the U.S. bishops and the Trump administration over the latter’s controversial immigration policies. While some bishops have spoken out forcefully against Trump’s push to end birthright citizenship, how the current laws are being used in this instance runs contrary to the Church’s teaching against both IVF and surrogacy.

Along with the birthright provisions of U.S. law, this lab-engineered pathway to U.S. citizenship has taken root because international surrogacy arrangements are not illegal under federal law, in contrast with other developed countries that ban international commercial surrogacy. 

According to the July 2024 Heritage Foundation paper, co-authored by Heritage staffers Emma Waters and Simon Hankinson, these countries “recognize the potential harms of international surrogacy for the surrogate mother and the child she bears with countless examples of exploitation, neglect, and little regard for the child involved.” 

In contrast, about half of U.S. states — most notably California — “openly encourage this industry” and make IVF and surrogacy procedures readily available to foreign nationals. 

Money is a major motive: Commercial surrogates can earn up to $60,000 for gestating a child for a foreign client, the Heritage analysis points out. Foreign clients similarly provide a lucrative revenue stream for U.S.-based IVF clinics and for the for-profit surrogacy agencies that facilitate arrangements between prospective parents, clinics and surrogates.

The birthright-citizenship dimension comes into play because “a surrogate-born child gains a birth certificate from the state in which the child was born and with it the full rights of U.S. citizenship at birth,” the analysis notes. Additionally, “Many states, including California, New York, Washington, Florida and Michigan, have detailed surrogacy laws and Uniform Parentage Acts that preemptively list the intended parents on the birth certificate. This occurs whether the intended parents are biologically related or not biologically related to the child.”

It's not known how many children overall have been conceived through such commercial arrangements and born on U.S. soil with automatic American citizenship, as that data isn’t tracked. But a 2024 report by the American Society for Reproductive Medicine documented how many times foreign nationals tried from 2014 to 2020 to have IVF-conceived embryos implanted into surrogates in the U.S. The annual number increased from 2,758 attempts in 2014 to 4,095 in 2019, before declining marginally the following year because of COVID-related restrictions on foreign travel. 

Since fewer than half of IVF cycles result in live births in the U.S., the annual number of births was significantly lower than these numbers.

Catholic Context

The Catholic Church categorically opposes both in vitro fertilization and commercial surrogacy. The Catechism of the Catholic Church states IVF is “morally unacceptable” because babies are conceived not as a result of a loving and natural act within marriage but instead are created technologically as commodities. The Church also strongly opposes it because vast numbers of embryos are created and later “discarded” during IVF procedures.

According to the 1987 Vatican document Donum Vitae (The Gift of Life), all forms of surrogacy are morally wrong because they undermine the unity of marriage and the integrity of the families and fail to respect the right of children to begin their lives in their own mother’s wombs. 

Pope Francis reiterated this teaching in a January 2024 address to the Vatican diplomatic core, describing surrogate motherhood as a “despicable” element of the “commercialization” of pregnancy and calling on the international community “to prohibit this practice universally.”

Regarding birthright citizenship, the Church does not have a comprehensive teaching. But the U.S. bishops have forcefully opposed a repeal of America’s current birthright-citizenship legal framework, stating on their website that doing so would “render innocent children stateless” and create “a permanent underclass in U.S. society, contravening U.S. democratic tradition.” 

Bishop Mark Seitz of El Paso, Texas, chairman of the U.S. Conference of Catholic Bishops’ Committee on Migration, criticized Trump’s executive order in a Jan. 22 news release, commenting that “the proposed interpretation of the Fourteenth Amendment to limit birthright citizenship sets a dangerous precedent, contradicting the Supreme Court’s longstanding interpretation.” 

Archbishop Nelson Pérez of Philadelphia — who is himself a birthright-citizenship citizen who was born in 1961 shortly after his Cuban parents came to Miami as political asylum refugees — spoke about Trump’s executive order in an interview with EWTN News In Depth in February.

“It’s concerning — and sad,” the archbishop said. 

“I’m no constitutional lawyer, nor do I present myself as one,” he added. “But I don’t know if an executive order could take away a constitutional amendment that’s the law of the land. So it’s disconcerting, and obviously now it’s being fought in courts because it has struck a chord in the hearts of people all over this country. And I pray that it will come to a just and actually loving resolution.”

The China Connection

Chinese nationals were far and away the leading foreign customers during this time frame, comprising almost 42% of the total attempted implantations. Indeed, the demand from China is so significant that the American Society for Reproductive Medicine has established a “Chinese Special Interest Group” to “promote the exchange of information among physicians and scientists of Chinese origin within and outside China and among the general members of the ASRM.”

According to the Heritage Foundation researchers, this high Chinese demand is fueled by several factors, including the fact that commercial surrogacy is illegal in China as well as the legacy of the communist nation’s long-standing population-control policies. The opportunity to secure U.S. citizenship is another fundamental motive. 

“In the foreseeable future, China and the U.S. will definitely be the two strongest countries in the world,” a man named Zheng, who is the co-founder of a California-based surrogacy agency called Fat Daddy, told NPR in 2022. “If the U.S. is not the first, then China will be and it will definitely be a win-win situation for your children in the future if they have both these nationalities.”

To put an end to this practice, the Heritage Foundation’s Waters and Hankinson recommended Congress enact legislation that bans foreign nationals from making commercial contracts with U.S. surrogates and that mandates the tracking of data on all live births resulting from surrogacy contracts, including foreign clients’ countries of origin.

While the issue of IVF-conceived births to foreign nationals is cited by birthright-citizenship opponents as an especially egregious abuse of the constitutional provision, such births comprise only a minute portion of the overall total of birthright-citizenship babies. 

The precise number of these births isn’t known because U.S. hospitals generally don’t record the immigration status of women who give birth.  But a March 28 Newsweek analysis reported that nearly 850,000 babies were born nationally in 2023 to foreign-born mothers. 

“While not all of those would necessarily qualify as birthright citizenship babies, it is likely many were born to mothers who were not American citizens,” Newsweek noted.

Political and Legal Developments

President Trump has long opposed birthright citizenship for children of people who are not American citizens and who are in the U.S. illegally. Upon his return to office this year, he immediately issued a Jan. 20 executive order that reinterprets the 14th Amendment to deny such babies American citizenship. The executive order would not strip birthright citizenship from any children who already held it prior to Feb. 19 of this year.

However, the constitutionality of Trump’s executive order was immediately challenged in several different courts by immigration activists. On Jan 23 in Seattle, U.S. District Judge John Coughenour issued a temporary 14-day suspension of the order, calling it “blatantly unconstitutional.” 

By Feb. 13, Coughenour and three other federal judges had issued separate court orders suspending the executive action for the duration of the lawsuits against it. On Feb. 19, the 9th U.S. Circuit Court of Appeals upheld the national injunction against the executive order. 

The Trump administration filed an emergency request on March 13, asking the U.S. Supreme Court to allow the executive order to remain in effect while the court cases are underway. But the Court declined to take immediate action, instead instructing lawyers representing the plaintiffs to respond to the administration’s arguments by April 4.

What’s Next

While a minority of analysts believe that Trump’s effort to reinterpret the 14th Amendment’s citizenship clause is constitutional, most legal experts disagree. The clause, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” was passed in 1868 after the Civil War concluded, with the primary intention of invalidating the U.S. Supreme Court’s 1857 Dred Scott decision denying citizenship to U.S-born persons of African descent.

Even some of the staunchest opponents of automatic birthright citizenship believe that executive action is not the correct approach and instead advocate for congressional action as a likelier avenue for success. Bills aiming to accomplish that goal have already been introduced by Republicans both in the U.S. Senate and in the House of Representatives.