Technologies of Travel, “Birth Tourism,” and Birthright Citizenship

Leslie F. Goldstein

This Essay addresses whether “birth tourism,” which has been facilitated by modern travel, advertising, and financing technologies to a degree not imaginable in the mid-nineteenth century, should be viewed as outside the reach of the Fourteenth Amendment's grant of birthright citizenship.1 The argument will proceed by first analyzing the history of birthright citizenship in the United States. As Part I will show, it is a deeply rooted phenomenon that long predates the Fourteenth Amendment's reification of it in the Citizenship Clause, and it covers all groups, irrespective of ethnicity. Birthright citizenship (the rule that all persons born in the United States and subject to its jurisdiction are U.S. citizens) has been reaffirmed twice by Congress (in 1866 and 1870) and once by the U.S. Supreme Court (in 1898). Since 1985, however, both scholars and legislators have begun to challenge its applicability to the children of both undocumented immigrants and birth tourists (people who travel to the United States solely to give birth so that the newborn will obtain a U.S. passport, and then promptly return home with their child). Part II will assess the magnitude of birth tourism and describe the technological changes of the late twentieth century that have rendered birth tourism from many parts of the globe to the United States a thriving industry. Part III will return to the constitutional question: whether the phrase “subject to the jurisdiction of the United States” should be reinterpreted so as to deny birthright citizenship to either undocumented immigrants or birth tourists, or both. Scholars who argue for this proceed on the assumption that neither phenomenon was known in 1868 when the Fourteenth Amendment was adopted. Part III.A will contest this assumption by showing that the legislative history of the Civil Rights Act of 1866 and the Fourteenth Amendment reveal a congressional awareness of persons who would be thought of today as “illegal immigrants,” and a clear intent to have children born to them within the United States covered by the grant of birthright citizenship. By contrast there was not a nineteenth century phenomenon similar to birth tourism. Part III.B will argue that the broad, underlying purpose of birthright citizenship, as it was developed in the settler colonies of the western hemisphere, Australia, and New Zealand, was to build a community of citizens who came together from a variety of other countries. This purpose can be fostered by continuing to extend birthright citizenship to children of those undocumented immigrants who set down roots here, but the purpose is undermined by effectively selling citizenship to anyone who can afford to travel here to give birth but who then demonstrates no interest in living here and raising children here.