Having a Citizen Baby
California Lawyer

Having a Citizen Baby

April 2014

Illustration by James Steinberg

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Alhambra family law practitioner Evie P. Jeang of Ideal Legal Group wasn't sure she wanted children, but she decided to hedge her bets by having her eggs frozen. Through that experience, she made contacts that now fuel a growing share of her practice - helping wealthy couples from China to contract with American surrogates as a means of having a baby with U.S. citizenship.

Babies born in the United States are automatically citizens under the Fourteenth Amendment. So parents from abroad who hire surrogates here are clearing a much faster route for their families to permanent residency and eventual citizenship than is normally available to foreign nationals. "The intent is to take the baby back to China to raise, and possibly to come back later for a [U.S. college] education," says Jeang. "It is also very difficult to transfer money out of China, but you can always give money [directly] to your kids."

New parents who have hired a surrogate typically travel to the United States on tourist visas to pick up their baby and then return home after securing a U.S. passport for the infant.

"They don't have to say they are here to pick up a child from a surrogate; that's nobody's business," says William W. Handel, an Encino attorney who founded and runs the Center for Surrogate Parenting. Handel says more than half the surrogate pregnancies his company arranges now involve foreign couples.

The rise of a very wealthy class in China, coupled with California's 1993 state Supreme Court ruling recognizing the rights of "intended" parents as superseding those of surrogates, has made the state a hot spot for surrogacy. (See Johnson v. Calvert, 5 Cal. 4th 84 (1993).) Almost half the states ban or limit the practice, or they consider surrogacy contracts unenforceable.

At $100,000 to $200,000 - which includes legal fees, insurance, medical care, and $30,000 to $45,000 for the surrogate - hiring a surrogate is still much cheaper than taking another fast track to legal residency: paying $500,000 or more for an entrepreneur visa.

Another reason some foreign couples hire American surrogates is to help their children dodge the draft at home, says Mark Krikorian, executive director of the Center for Immigration Studies, a group in Washington, D.C., that supports tighter immigration controls. He would like the United States to give citizenship to foreign parents' babies only if children spend their first ten years here, but that's not likely to happen.

"A child born in the U.S., regardless of who the parents are or how the gestational mother became pregnant, is a U.S. citizen," says Gabriel J. Chin, an immigration law professor at UC Davis. "If the mother is undocumented or a tourist, the child is [still] a U.S. citizen. ... There are issues of custody, which are complicated by the citizenship and residence of the parents. But that is a different issue."

Reports in 2011 of the growth of "birthing tourism" sparked national headlines after zoning officials shuttered three unlicensed birthing centers in San Gabriel that were operating as unlicensed birthing centers for women from China. That case, however, didn't involve surrogates. Nor did the one related federal criminal case that has so far been brought - in Saipan, a U.S. commonwealth. (U.S. v. Chen, No. 12-0026 (D. N. Mar. I. filed Mar. 11, 2013).)

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