When Mita Kripalani (name changed), from Mumbai, India, gave birth to her daughter Asha in 1999 in Edison, New Jersey, she and her husband believed that by virtue of being parents of a U.S. citizen, they too would be granted citizenship immediately. “We thought that we could just stay on in the U.S. since Asha is a citizen. We were very surprised to find out that this is not true.”
Maternity tourism, while arguably unethical, is not illegal. It refers to the practice of pregnant foreign nationals entering the United States on a tourist visa with the intention of giving birth on American soil, so that they children will automatically be granted U.S. citizenship.
Currently, U.S. immigration policy permits pregnant women to travel to the U.S. Thus, while maternity tourism generates much controversy, it is within the bounds of U.S. law.
Birthright citizenship was established under the Fourteenth Amendment of the U. S. constitution to reverse the U.S. Supreme Court’s 1857 Dred Scott decision which held that even those who were born in the U.S. as “freedmen” were not automatically American citizens.
Maternity tourism is a booming business predominantly in Korea, China, and (recently) India. Frequently, pregnant women who travel from these countries to the United States to give birth are not only relatively wealthy, but are also here legally on tourist visas. Earlier this year, the New York Times reported that authorities shut down a makeshift maternity clinic in Southern California, the hub of birthing tourism. The clinic was “crammed” with ten newborns and their mothers who paid as much as $35,000 each to travel to California from China to give birth. However, the reason the clinic was shut down was because it was illegally constructed and operating as a business in a residential area and not because of its participation in the birthing tourism industry.
According to the maternity clinic officials, most of the mothers return to their countries with their American babies soon after delivery. If they do not intend on living in the United States, the real question then becomes, what benefits are these mothers seeking by birthing their children here? While they all may be seeking better opportunities for their American-born children, the specifics of each mother’s situation varies. For example, a recent surge in Indian and Pakistani women giving birth in the United States has been mostly attributed to a desire to provide their child with better educational opportunities. Many of these families believe that a U.S. citizen has a better chance than a foreign applicant to being admitted into an elite American university. This may in fact be evidenced by the small percentage of international students in many undergraduate and graduate programs. Additionally, financial aid also plays a role in their equation, since it is true that while U.S. citizens are able to obtain government and private educational loans relatively easily, whereas foreign students are often required to have a U.S. cosigner in order to obtain such loans. For Koreans, maternity tourism has another justification: Koreans who are born in the United States and are therefore U.S. citizens, are not required to serve in the South Korean army. Thus, many Korean parents place a high premium on giving birth in the United States. Meanwhile, many Chinese parents are vying to have a second baby born in the United States in an effort to sidestep the one-child policy in China.
Some foreign nationals, like Kripalani, give birth in the United States. under the mistaken belief that their citizen-child will then help their parents and other family members establish residency and/or citizenship immediately, thereby bypassing the long wait times associated with the normal channels of immigration. However, under U.S. immigration law, minors are not permitted to sponsor a parent or relative until the minor reaches 21 years of age.
Other parents mistakenly believe that having a child in the United States would enable them to receive public assistance, even after they move back to their home countries. Manish Shah (name changed), from Walnut, California, took his friend, whose wife had just given birth in the United States while on a tourist visa, to the Social Security Office in order to find out what benefits their American child would be entitled to. “I was shocked when they told us that my friend’s family would not get any benefits, not even money for food or milk, when they go back to India. I thought as a citizen, their daughter would get all the benefits.” While it is true that the children may instantly qualify for welfare and other state and local benefit programs, the parent must first apply for it, provide proof of financial need, and meet a full range of federal and state requirements. Additionally, each state has its own residency requirements. For example, to be eligible in Pennsylvania, an individual must be living within the state and have the intention of remaining there, thereby decreasing the potential for abuse.
Being a U.S. citizen comes with many advantages, namely the stability and security afforded by the country’s rule of law. However, prospective maternity tourists should make an informed decision before blindly embarking on a costly path with unrealistic objectives, which may never be realized.
Priyanka Wolan is an immigration attorney with Wolan Law. She can be reached at (323) 825-1653 or [email protected]. Her website iswolanlaw.com