Giving birth in the United States has become increasingly popular in recent years, but is it legal? There are significant language, cultural, and systemic differences between China and the United States, and Chinese parents will undoubtedly encounter legal issues during this challenging journey of childbirth. A slight misstep could lead to serious losses and jeopardize their rights.
The United States is a rule-based country governed by law. Chinese parents must grasp relevant legal knowledge to protect their rights and those of their children. The Law Office of Zhang Daqin in Los Angeles is willing to combine legal regulations and practices to answer some of the most common questions related to giving birth in the United States:
1. The issue of the child's identity when giving birth in the United States
The United States primarily adopts the principle of jus soli to determine the nationality of newborns. According to the 14th Amendment of the Constitution, ratified in 1868: "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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This means that children born in the United States enjoy "birthright citizenship" and automatically acquire U.S. nationality, regardless of their parents' nationality, race, or legal status.
The United States is the only developed country that maintains "birthright citizenship." Newborns born on U.S. soil not only automatically acquire U.S. nationality but also enjoy corresponding benefits and welfare, including health insurance, various subsidies, and the right to vote and be elected.
They receive 13 years of free compulsory education from kindergarten to K12 and low-interest student loans for college. These "baby" citizens can apply for immigration to the United States for their parents and siblings once they reach 21 years of age, which is a more advantageous position than that of green card holders.
2. Does giving birth in the United States violate the tourist status? Is the B-2 visa allowed for giving birth?
From a legal and civil relationship perspective, the principle of "what is not prohibited by law is permitted" applies. Currently, U.S. law does not explicitly prohibit Chinese pregnant women from giving birth in the U.S. on a tourist visa (B-2), which is widely recognized by the U.S. government (for example, this is clearly stated on the websites of the U.S. Embassy in France and the Customs and Border Protection). Furthermore, the B-2 visa is issued to applicants traveling to the U.S. for tourism and leisure, as indicated on the U.S. government website, which includes "tourism," "medical," and "other social or service-related activities." If the application for a B-2 visa by a Chinese pregnant woman to give birth in the U.S. is interpreted as "medical" or participating in "service-related activities," it is a reasonable and legal action that aligns with tourist status.
Since the U.S. does not prohibit giving birth in the country, why do U.S. embassies frequently deny visas to pregnant women? Many people find this puzzling. The refusals by overseas visa officers to pregnant women are not based on a violation of any U.S. law regarding giving birth in the U.S., but rather because U.S. immigration law grants overseas visa officers significant discretion in assessing facts, and they exercise this discretion to deny visa applications. According to Section 214(b) of the Immigration and Nationality Act (INA), overseas visa officers conduct strict factual examinations of visa applicants, initially presuming that applicants have "immigrant intent," and it is then up to the applicants to prove otherwise. If the visa officer generally accepts the applicant's claims and credibility and finds no immigrant intent, a visa will be issued; if the officer assesses the applicant's overall situation and believes the application does not meet U.S. immigration law and visa purposes, the visa will be denied. Although the U.S. Department of State has the authority to review visa case determinations, its jurisdiction is limited to judicial interpretation, not factual adjudication. Overseas visa officers have the final authority over all visa cases.
In practice, visa officers will make a comprehensive assessment of B-2 visa applicants' situations and will not simply deny a visa because the applicant is pregnant. For example, visa officers will consider whether the pregnant woman has intentionally concealed her true motive for coming to the U.S. or lied to the officer. If such behavior is present, the officer may determine that the applicant lacks credibility and deny the visa. Additionally, if the pregnant woman truthfully states her purpose for giving birth in the U.S., the officer will consider whether the applicant might abuse the U.S. healthcare system and whether she has sufficient financial means to cover all expenses. If the officer has doubts, the visa application may also be denied. In summary, visa officers will make a final judgment based on a comprehensive assessment of the visa application.
3. Do U.S. Customs have the right to deny entry to tourists simply because they are "pregnant"? Do Customs have the right to inspect a foreign pregnant woman's body? Are there issues of privacy and due process?
Parents who give birth in the U.S. and obtain a U.S. travel visa do not have a guarantee of a smooth entry. Upon entering the U.S., Customs and Border Protection officers may still question them and even deny entry. Just like overseas visa officers, U.S. Customs and Border Protection officials have significant authority; they can decide whether travelers can enter the country and determine the duration of their stay.
Jaime Cruiz, a spokesperson for U.S. Customs and Border Protection, pointed out that there is no specific law or regulation in the U.S. that denies entry to tourists solely because a woman is "pregnant." U.S. immigration law does not prohibit giving birth in the U.S. Those who are deported or denied entry do so because they did not answer Customs officials' questions truthfully, engaging in deception or fraud. He further stated that if a pregnant woman giving birth in the U.S. is stopped by Customs and Border Protection officials, they will inquire whether the pregnant woman will pay for her hospital expenses, how she will pay, and where she will reside, among other questions. Customs will check whether the traveler's passport is expired and whether there is a legitimate reason for entering the U.S.
The Fifth Amendment of the U.S. Constitution states: "No person shall be deprived of life, liberty, or property, without due process of law"; the second clause of the Fourteenth Amendment states: "No state shall deprive any person of life, liberty, or property, without due process of law," limiting local states by due process. Since the 1965 case of Griswold, the U.S. Supreme Court has established that the right to privacy is a fundamental right protected by due process, applying strict scrutiny standards. Officials inspecting a pregnant woman's body without consent undoubtedly infringe upon her right to privacy, which should be protected by the Constitution.
At the same time, the U.S. Constitution rarely considers a foreigner's nationality as a condition for enjoying due process rights, meaning that the U.S. government generally provides foreign legal entrants (even those who are illegally residing) a fair opportunity to correct or rebut improper government actions, protecting the constitutional rights of foreigners.
However, in practice, the U.S. Constitution only applies to U.S. territory. According to U.S. federal court precedents, only foreigners who enter U.S. territory are granted constitutional due process rights; those who have not entered U.S. territory do not enjoy such rights. Therefore, when a pregnant woman is stopped by officials at Customs, she has not legally entered U.S. territory and is not protected by the constitutional due process.
4. What reasons do Customs typically give for denying entry to pregnant women?
U.S. Customs and Border Protection denies entry to tens of thousands of people each year. Reasons for denying entry to foreigners include: improper travel documents, prohibited actions or intentions under the law, non-compliance with visa waiver program travel, smuggling prohibited items, criminal behavior or history, and violations of immigration law. Violations of immigration law include: overstaying, attempting to enter the U.S. using false documents, and issues related to national security.
In practice, pregnant women entering U.S. Customs should pay special attention to: first, answer officials' questions honestly. Second, be prepared with sufficient financial documentation for inquiries. U.S. officials and the public are particularly concerned about overseas pregnant women abusing U.S. medical services, believing that overseas pregnant women, having not paid any taxes, should not enjoy U.S. welfare. However, if the pregnant woman can provide evidence of how she will pay for medical expenses, it can alleviate Customs enforcement officers' doubts and concerns, allowing for smooth entry into the U.S.
5. Is it possible for the U.S. to amend the Constitution to prohibit pregnant women from entering? Is it possible to treat children born in the U.S. differently based on their parents' nationality?
Although some Americans are dissatisfied with overseas pregnant women giving birth in the U.S., and some Republicans have attempted to push for constitutional amendments to prohibit pregnant women from entering the U.S., treat domestic and foreign pregnant women differently, or abolish "birthright citizenship," we do not believe that the U.S. will amend the Constitution for this reason.
(1) The threshold for amending the U.S. Constitution is high, and the operational difficulty is great. The U.S. Constitution grants the people "birthright citizenship," and only a new constitutional amendment can change or abolish this right. This requires the support of more than two-thirds of Congress and three-fourths of the states to pass. The Republican Party, as a minority party, pushing this amendment in Congress is merely a political strategy to please conservative voters and does not have much operational space. In fact, since Senator Harry Reid of Nevada in 1993, through the Republican proposal in 1996 to Nathan Deal in Georgia in 2009, Congress has always been in dispute over "birthright citizenship" but has never achieved an amendment.
(2) "Birthright citizenship" embodies the spirit of the U.S. Constitution. Since its implementation 145 years ago in 1868, it has become the cornerstone of human rights in the U.S., reflecting the values of equality and freedom. Abolishing "birthright citizenship" or prohibiting pregnant women from entering would not only face opposition from the American people but also affect the U.S.'s image as a free and equal nation, violate the right to free movement, and contradict the fundamental spirit of the Constitution.
(3) The impact of giving birth in the U.S. on society is controversial and not entirely negative. For example, most Chinese parents who give birth in the U.S. have relatively good economic capabilities; they not only bear the medical costs of childbirth themselves but also spend significantly on shopping and quickly return to China after giving birth. They do not impose a burden on American society; rather, they bring economic benefits and promote economic development.
While constitutional amendments are unlikely, it is still possible to amend federal immigration and nationality laws and state laws. In 2010, Republican legislators in Arizona attempted to draft State Bill 1070, which required that at least one parent of a child born in the state must have legal citizenship in the U.S. to issue a birth certificate. Although this bill ultimately did not come into effect, it received support from the majority of legislators in the state. At the same time, the Center for Immigration Studies in the U.S. also proposed amending the current federal Immigration and Nationality Act, hoping to reduce "speculators" in childbirth travel, suggesting adding a clause regarding "intent to give birth in the U.S." to the reasons for visa denials at embassies and consulates to clarify the legal gray area.
In summary, the U.S. is a democratic society, and congressional legislation must consider the claims of various interest groups. Without a unified opinion and resolution of disputes, it is impossible to amend the Constitution specifically for pregnant women. Instead, the government is more likely to adjust visa entry laws and policies and increase efforts to combat fraudulent visa acquisition.
6. Do children born in U.S. territories (territories outside the fifty states, such as Guam and Puerto Rico) also have U.S. citizenship? What are the differences?
U.S. territory includes the fifty states, Washington D.C., as well as American Samoa, the Northern Mariana Islands, Guam, and Puerto Rico. When a child is born in U.S. territory, they undoubtedly acquire "birthright citizenship" under the Constitution and automatically obtain U.S. nationality. However, not all children with U.S. nationality are U.S. citizens. According to U.S. law, children born in the U.S. territories of American Samoa and Swain's Island (AS) are U.S. nationals, holding U.S. nationality but do not automatically become U.S. citizens.
The main difference between U.S. nationals and U.S. citizens lies in political rights. U.S. nationals without citizenship cannot vote or hold public office; for example, they cannot run for President of the United States. Aside from this distinction, they are generally equal in rights and benefits. U.S. nationals can apply for passports, indicating "U.S. nationality"; they can move to any state and freely educate, work, and live without being subject to restrictions similar to China's household registration system.
7. After the child is born, can the mother use the child's U.S. citizenship as a reason to come to or reside in the U.S.?
According to U.S. immigration law, U.S. citizens can only apply for green cards for their parents and siblings once they reach 21 years of age. Prior to that, the parents of a "citizen child" cannot use the child's citizenship to settle or work in the U.S.