Guest Opinion: Dire consequences for commercial surrogacy in the Trump era

  • by Evie P. Jeang
  • Wednesday March 20, 2019
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Evie P. Jeang
Evie P. Jeang

The future of commercial and international surrogacy is under threat by President Donald Trump's pledge to end birthright citizenship for children born to non-citizens and undocumented immigrants.

Under the 14th Amendment to the United States Constitution, a child born on U.S. soil is automatically granted citizenship in this country. However, if Trump follows through on his planned executive order to remove citizenship rights of babies born to non-U.S. citizens, commercial and international surrogacy in the United States could face some serious challenges.

The 14th Amendment 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." But if birthright citizenship is no longer guaranteed by the Constitution, children born to immigrants and non-citizens will not be recognized as citizens of any country. Citizenship grants for children of international families will become unnecessarily complex.

Ideal Legal Group's surrogacy and family law practice represents prospective parents from both the U.S. and abroad. Much of the firm's international clientele comes from China, where surrogacy is both illegal and looked down upon by society. Accordingly, many Chinese nationals come to the U.S. to employ a gestational surrogate (a woman who carries the child but is not the genetic mother) to carry their babies because it is legal and ethical here. Under current U.S. laws, when a baby is born to a surrogate mother in the U.S., the child is automatically extended American citizenship and the rights that citizenship includes.

Typically, international parents don't come to this country seeking surrogates so their children can achieve American citizenship. Usually, the choice to have a child through a U.S. gestational parent has to do with medical, legal, and ethical concerns. Couples from countries where surrogacy is either illegal or culturally frowned upon would no longer be able to look to surrogates in the U.S. for help in starting their families.

An executive action, such as one Trump is proposing, is likely to face significant legal hurdles, as well as public pushback. In anticipation, though, for changes to birthright citizenship laws and to protect themselves and their babies in general, couples should take specific legal steps when using surrogate services.

The most fundamental step for parents to take, whether they are from this country or from abroad, is to ensure parentage over the child through legal agreements that transfer parental rights once the baby is born. In California, the transfer of rights is executed through the Family Code, in which a parentage action confirms the birthrights of the intended parents. In drafting these legal agreements, the intended parents and the gestational surrogate use separate attorneys' offices to ensure there are no conflicts. The state's surrogacy laws provide that a surrogacy contract must contain the date the contract was entered into, the persons from which the gametes originated, the intended parents' identities, and the process for any necessary pre-birth or parentage orders. These orders outline the risks and responsibilities of each party, including stipulating what will happen in the event of a miscarriage or if the surrogate has more than one child, as examples. Surrogacy is a very complicated process, and couples and individuals seeking to have a child through surrogacy would be wise to consult an experienced family law attorney.

A Taiwanese-American litigator practicing for nearly 15 years, Evie P. Jeang, founder and managing partner of Ideal Legal Group Inc. and Surrogacy Concierge, LLC, focuses her practice on helping families and couples in a range of matters, including child custody and support, guardianship, divorce, legal separation, division of property and restraining orders. Jeang is one of the few attorneys who understands firsthand how to handle the complex matters of international family law.