The first month of US President Donald Trump’s second term saw an onslaught of executive orders. The order aiming to change how birthright citizenship – the constitutional guarantee of citizenship to most children born within US territory – is granted could be the most consequential. Federal judges in Maryland, Washington state, Massachusetts and New Hampshire have issued nationwide injunctions against the order, and the San Francisco-based US Court of Appeals for the Ninth Circuit rejected the Trump administration’s appeal.
To date, most media outlets, civil and human rights organisations, and activist groups have expressed concern about how a change to birthright citizenship would impact undocumented people and their children. However, a change could also have a series of further consequences, particularly for children of LGBTQ+ couples and children born through assisted reproductive technologies (ART) such as surrogacy.
There are at least three related outcomes to consider: tension between federal and state definitions of parentage, a heightened administrative burden for establishing proof of citizenship, and the potential harm to what is the world’s largest surrogacy market.
Who are the parents? Not so simple
In countries where children obtain citizenship based on the citizenship of their parents, the legal parameters of the family are of utmost importance. For this reason, countries often provide specific definitions of who “counts” as a parent. In the US, this responsibility falls to the states, which provide their own definitions. One common practice is known as the “parturient” rule, which holds that the person giving birth is the legal “mother” and her spouse the legal “father”. This practice is increasingly contested. With the rise of ART and, in particular, surrogacy, the person giving birth is not always the intended parent. In fact, at least 14 US states have recognized that the parturient rule does not encompass many types of family arrangements and have altered their administrative frameworks so that “intended parents” can be immediately placed on birth certificates.
While the establishment of parentage occurs at the state level, establishing citizenship is a federal responsibility. As a result, the federal government also provides its own legal definition of parenthood. This definition includes the following family roles: a genetic parent, a non-genetic gestational parent, a non-genetic and non-gestational spouse of a genetic and/or gestational parent, and parents of an adopted child. By contrast, the definitions in Trump’s executive order would spark a return to traditional heteronormative definitions of parentage. The mother is defined as “the immediate female biological progenitor” and the father as “the immediate male biological progenitor”. Such definitions leave out not only most LGBTQ+ couples, but also some families seeking ART, because children born through these modalities may not be biologically related to the intended parents.
If the order comes into force, it would result in a mismatch between federal and state definitions of parentage and likely invite many legal disputes, while leaving some children born through ART at risk of statelessness if their parents are unrecognized as such. Citizenship is vital to an individual’s personal security: stateless children can, in some cases, be separated from their intended parents. Moreover, without a legal status, children and their families cannot benefit from the full range of federal and state services, including access to the child welfare system, funding opportunities for higher education and health care. For example, according to officials in 24 states, children would lose benefits from the Children’s Health Insurance Program and Supplemental Nutrition Assistance Program, which all US-born babies are currently eligible to receive.
The bureaucratic burden
The administrative burden of citizenship recognition for newborns is another overlooked issue in discussions about Trump’s order. In most cases, a birth certificate from a US state is sufficient to prove one’s citizenship status. After a child is born, hospitals normally transmit birth-certified information to the local municipality. The child’s birth certificate is then issued three-to-five business days later. The certificate suffices for recognition of citizenship and for federal documentation such as a passport.
The executive order would increase the administrative burden for recognising citizenship. It is unclear, however, whether this burden would fall on the states or the federal government.
In the first scenario, state bureaucracies would need to check the parents’ immigration status prior to issuing a birth certificate. This would undoubtedly cause confusion, as each state would need to provide new guidance and training to local bureaucrats on the medley of US immigration statuses and their attendant rights. The processing times for issuing birth certificates would increase, as verification procedures would require additional documentation. The fees for issuing certificates, currently between $7 and $35, would likely rise as well, since bureaucrats would need to investigate each birth rather than issue certificates automatically.
If the administrative burden falls on the federal government, birth certificates would be issued in the same way and at the same cost by the states, but they would no longer be sufficient to prove a child’s citizenship. In this case, the government would need to issue citizenship certificates, which are normally reserved for proof of citizenship for children born abroad. Each case would require an individual investigation rather than being automatic, and while it’s hard to say how much fees could rise, current fees for citizenship certificates for children born abroad are north of $1,300. The processing of passport applications would take longer and likely be more costly, too, because a system to verify the immigration status of a child’s parents will need to be set up.
In 2012, the National Foundation for American Policy (NFAP) released a report that outlined the potential impacts of ending the current approach to birthright citizenship. The report estimates, based on the costs of US citizenship certificates for children born abroad, that changing the existing law – which Trump’s order seeks to reinterpret – would cost parents “approximately $600 in government fees to prove the citizenship status of each baby and likely an additional $600 to $1,000 in legal fees”. The report describes these costs as a “tax” on “each baby born in the United States”.
Alternately, the US could establish a new national ID card system, but this would also have bureaucratic costs. This type of ID card is common in European countries: with some variation between systems, cards can be used for travel within the EU (as an alternative to a passport) and are generally used to prove citizenship status to vote or receive certain social services. But unlike in the European states that issue these cards, the US government has no registry of vital records and would need a new administrative structure to create one. When the UK government discussed such a system in 2007, its total cost was estimated to be at least 5.75 billion pounds.
The NFAP report mentions the federal systems that rely on the current practice of state-administered birth certificates and automatic citizenship to function. These systems include the Social Security Administration, which handles retirement, disability and family benefits, and the E-Verify system, which determines whether a person has authorisation to work in the US. The report states that systems such as E-Verify “have cost the American taxpayer billions of dollars. There is no reason to believe that a change to the Citizenship Clause requiring the verification of parents’ immigration status would be any less expensive.”
Costs to the US surrogacy market
The US surrogacy industry is the largest in the world. It is valued at over $20 billion (and is expected to grow to $195 billion by 2034), and attracts families from European and Asian countries where surrogacy is not as prevalent or is illegal. An important factor in the size of this market is the attractive environment for surrogacy arrangements. First, surrogacy is relatively mainstreamed in the US, and there are many companies that help with finding donors, surrogates and with navigating the legal process. Second, intended parents have the security of knowing their children will have immediate access to travel documents, such as a US passport, after birth. If a new definition of parentage goes into effect, thus removing the guarantee of US citizenship, the status of children born through surrogacy could be at risk. The attractiveness of the US surrogacy market would likely suffer, because parents would face time-consuming and costly steps to secure status and immigration documents to allow travel between the US and their home country.
An unclear fate
The approach to parenthood in the executive order on birthright citizenship aligns with the Trump administration’s overall push toward pronatalism and traditional heterosexual family models. Trump has also signed another executive order expanding access to in vitro fertilization (IVF) for “longing mothers and fathers”. The definition of parentage in this order also leaves out same-sex couples, who often receive IVF treatments.
The fate of the birthright citizenship order is unclear, and it will likely end up reaching the Supreme Court. Legal debates must include the constitutionality of denying automatic citizenship to US-born children, the effect on children born via assisted reproductive technologies, and the bureaucratic and financial burdens placed on states and parents. While an end to birthright citizenship would immediately affect the children of undocumented people, taking a step back reveals other consequences that could impact the broader US public for generations to come.
