President Trump’s Threats to Remove Birthright Citizenship Could Impact Surrogacies

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Posted: 5th March 2019 by
Lawyer Monthly
Last updated 18th July 2024
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Birthright citizenship plays a vital role in family law, particularly for foreign nationals who chose to have a child through surrogacy.

With Donald Trump’s recent threat to remove birthright citizenship rights, many international families may wonder how this could affect the nationality of a child born to immigrants. Below, family law Attorney Evie Jeang, founder of Ideal Legal Group, Inc., explains that without birthright citizenship, children born to immigrants and non-citizens will not be recognized as citizens of any country, and that by eliminating these laws, citizenship grants for children of international families will become unnecessarily complex, and the surrogacy market could take a hit.

Under the current laws, when a baby is born in the US to a gestational mother who is an American citizen, the baby is automatically extended American citizenship. The 14th Amendment of the United States provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In other words, children of international intended parents obtain US citizenship upon birth by a gestational parent in the US Among many legal, medical and ethical factors, birthright citizenship offers an appeal to international families without US citizenship looking to conceive through surrogacy. Thus, the popular commercial surrogacy market could take a hit without birthright citizenship attracting wealthy foreigners.

International family and divorce law firm, Ideal Legal Group Inc., frequently encounters the issue of birthright citizenship for foreign couples looking to conceive, particularly among their clientele base from mainland China.

Ideal Legal Group’s Chinese clientele face legal and cultural opposition to surrogacy in their country, and accordingly, many Chinese nationals come to the United States, where it is legal and ethical to employ a gestational surrogate to carry their baby. Through birthright citizenship, the child is eligible to receive US citizenship benefits, including education, social welfare and treatment in American medical facilities. A child with US citizenship is also eligible for dual residency in countries that recognize this concept.

Ideal Legal Group helps intended parents secure their birthright by ensuring parentage over their child in which they choose to be delivered by an American surrogate. Through their work with Surrogacy Concierge, Ideal Legal Group locates surrogates of specificity for international clientele, ranging in a variety of education and socioeconomic status.

Once a surrogate is selected, the legal process begins. The legal team drafts agreements on behalf of the intended parents to ensure that once the baby is born, the parental rights are transferred from the surrogate parent(s) to the intended parents. In the State of California, this is executed through the Family Code in which a parentage action confirms the birthrights of the intended parents.

The legal team drafts agreements between the intended parents and a gestational surrogate (and their spouse if applicable), memorializing through a legal agreement the medical stages of surrogacy. The intended parents are represented by one attorney and the gestational surrogate is represented by another attorney.

California surrogacy laws provide that a surrogacy contract must contain the date that the contract was entered into; the persons from which the gametes originated; the identity of the intended parent(s); and the process for any necessary pre-birth or parentage orders. Ideal Legal Group incorporates provisions that protect the intended parents’ birthrights.

Further, the legal team focuses on identifying the risks and responsibilities that each party is assuming, including but not limited to, surrogate compensation, what happens in the event of an unfortunate miscarriage, and protocol if the surrogate has multiple children rather than the one child which was contracted. The surrogacy contract is a map for the process.

Ideal Legal Group also handles the courtroom work. Pre-birth parentage orders are needed to finalize the intended parents’ legal parental rights. No actual court hearing is needed; however, pre-birth parentage orders are filed in advance of when the baby is born, and the Judge signs off on the transfer of parental rights from the surrogate to the intended parents.

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