Birth tourism is only the beginning

International Surrogacy and U.S. Citizenship: Ongoing Policy and Legal Questions

When the Supreme Court ruled in Trump v. Barbara that President Trump’s executive order on birthright citizenship could not stand, the decision addressed the constitutional question of citizenship at birth for the time being. It left open questions about how Congress and the executive branch might regulate related commercial arrangements involving foreign nationals and U.S. surrogates.

The ruling did not alter Congress’s authority to set immigration and visa policy. Lawmakers and the administration retain the ability to adjust rules on contracts, agencies, and entry requirements without a constitutional amendment. Until any future court review, responsibility for these regulatory questions rests with the political branches.

One case that has drawn attention involves gestational surrogacy arrangements with foreign intended parents. In Florida, Kyla Simpson served as a gestational surrogate for triplet boys on behalf of an intended parent in China. Court records show the intended parent did not travel to the United States during the children’s NICU stay or the subsequent period the Simpsons cared for them. One child later died of RSV. When two individuals arrived to collect the surviving twins, Simpson declined to release them and petitioned to terminate parental rights. The intended parent responded through counsel, and a Florida judge issued an emergency pickup order. The twins, now approximately 20 months old and U.S. citizens, remain in state custody while travel documents are processed.

Separate court filings in the matter have alleged that the intended parent was the victim of a scam. The Florida Attorney General’s office intervened in related proceedings to address concerns about the children leaving the United States. The case remains in litigation.

Data from the American Society for Reproductive Medicine indicate that embryo transfers involving foreign intended parents rose from 2,758 in 2014 to 4,905 in 2019. Chinese nationals accounted for 41.7 percent of those cases. More than 100 Chinese-owned surrogacy agencies operate in Southern California, some with offices listed in mainland China. The same data show that the large majority of U.S. surrogacy arrangements continue to involve U.S. intended parents.

Some observers have raised concerns about the scale of international arrangements relative to domestic ones. Others note that conventional birth tourism by Chinese nationals has produced an estimated 50,000 to 100,000 U.S. births annually in recent years. Investigative journalist Peter Schweizer has estimated that more than one million individuals born in the United States under such circumstances are being raised in China since 2013; that figure is an estimate and has not been independently verified by government statistical agencies.

Policy proposals have focused on several areas. Florida enacted a statute earlier this year restricting surrogacy contracts with foreign nationals from certain countries, including China, Russia, and Iran. The law does not prevent Florida residents from using agencies based in other states. Federal legislation introduced by Sen. Rick Scott and Rep. Scott Perry would prohibit foreign nationals from entering commercial surrogacy contracts with U.S. surrogates or agencies. Most developed countries already maintain similar restrictions.

Additional proposals include requiring federal reporting of commercial surrogacy contracts and resulting births, including the nationality of the intended parents, and directing the State Department to deny visas to individuals traveling primarily to commission or retrieve a child through such arrangements. Heritage Foundation Vice President Roger Severino has suggested using existing presidential authority over entry to condition future visa eligibility for foreign nationals who have a child on U.S. soil and decline to relinquish the child’s U.S. citizenship. Vice President JD Vance has expressed support for related measures concerning U.S. territories.

Proponents of these steps argue they would address potential immigration, security, and child-welfare issues without altering the Supreme Court’s interpretation of the 14th Amendment. Critics contend that such measures could affect legitimate family-formation options and that existing fraud statutes already provide enforcement tools. The Simpson litigation has been cited by some as an example of enforcement challenges; others point to it as an isolated dispute still under judicial review.

The 14th Amendment’s text and historical understanding continue to be debated in legal scholarship. The Supreme Court’s recent decision resolved one executive action but left room for legislative and administrative responses. Any further changes would depend on congressional action or subsequent court rulings.

Editor’s note: This article incorporates additional case details and statistical context not present in the original column.