Trump EO Still Allows Foreigners To Buy Citizenship Via Surrogacy

President Trump’s executive order (EO) on birthright citizenship clarifies a longstanding debate: Children of non-U.S. citizens who are unlawfully or temporarily in the United States are not automatically eligible for citizenship. Still, the EO’s definition of mother — “the immediate female biological progenitor” — creates an unintentional loophole that foreign nationals, predominately from China, will continue to exploit.

Advances in reproductive technology, including in vitro fertilization (IVF) and commercial surrogacy, have enabled a pervasive industry of high-tech birth tourism. Instead of requiring a woman to travel to the United States to give birth, wealthy foreign nationals may contract with an American surrogate to bear children for them in the U.S. This loophole exploits the privilege of citizenship and reduces it to a global commodity.

Since the EO defines mother and father as the biological progenitors of the child, this raises an important question: What does this mean for foreign nationals who use an American’s donor egg or sperm to conceive a child?

Even though the foreign nationals are the legal and intended parents, a strict reliance on the child’s biological parent means foreign nationals could claim citizenship for their child. And, depending on the court’s interpretation of “immediate” and “progenitor,” this could apply to the surrogate mother too.

While this may seem far-fetched, the use of IVF and surrogacy means a child could be born with as many as three “mothers”: her biological mother (the egg donor), her birth mother (the surrogate), and her legal mother (the woman who will legally raise her). Similarly, she may have two “fathers,” her sperm donor and her legal father.

For those actively working to protect the privilege of U.S. citizenship, it is imperative for the EO’s definition of “mother” and “father” to include children created through U.S. donor egg or sperm and surrogacy.

Surrogacy organizations have begun to weigh in. The Tsong Law Group argues that the use of “progenitor” subtly implies that if the woman giving birth is a U.S. citizen, in this case a surrogate, then the child would be too, even if the parents are foreign nationals. Other surrogacy agencies, such as Creative Family Connections, have announced “a 2-step birth certificate process” to ensure that children of American surrogates and foreign nationals still get U.S. citizenship.

As the Surrogate First agency recognizes, “For international intended parents, the certainty of their child obtaining U.S. citizenship at birth is a significant factor in choosing the U.S. for surrogacy arrangements.” These are blatant examples of surrogacy agencies selling citizenship to foreign buyers via commercial surrogacy agreements.

Over the last 15 years, major news outlets such as NPR (here, here, here, here, and here), The New York Times, CNN, PBS, the Los Angeles Times, and more have reported on the curious case of foreign nationals, specifically from China, using American surrogates to secure citizenship for their children. As one Chinese man, Zheng, explained in an interview with NPR, “In the foreseeable future, China and the U.S. will definitely be the two strongest countries in the world,” adding, “If the U.S. is not the first, then China will be and it will definitely be a win-win situation for your children in the future if they have both these nationalities.”

“Before the pandemic, Zheng says, Chinese demand for surrogacy and birth tourism services was so high he used to rent out entire apartment buildings for Chinese families,” NPR reported.

Indeed, in 2024, the American Society for Reproductive Medicine’s academic journal released a report revealing that contracts between foreign nationals and American surrogates increased by 78 percent between 2014 (2,758 cycles) and 2019 (4,905 cycles). Chinese nationals make up 41.7 percent of cases. While we do not know the exact number of births, surrogacy agencies estimate hundreds, if not thousands, of births annually.

Such foreign nationals are not only relying on American surrogates but pursuing American egg donors too. To this point, Jennifer Garcia, a surrogacy case coordinator with Extraordinary Conceptions, told NPR, “They [Chinese clients] all say the same thing: tall, blond, blue-eyed and pretty.”

An entire boutique industry of surrogacy agencies caters to this lucrative market, with many specializing in Chinese clientele. These families want citizenship not only for their children but also for themselves. As I argue in The American Mind, there are many benefits to creating a child in the United States. Those children get full American citizenship, birth certificates, and Social Security numbers. They also receive educational access — “and a path for their biological parents to receive a green card when the child turns 21.” Certain agencies even market themselves as a “cheaper alternative than an EB-5 visa,” which costs half a million dollars, not to mention paperwork and precious time.

This is why the EO’s definition of “mother” and “father” must include foreign nationals who rely on American eggs and wombs to birth children in the U.S. Unless the EO’s interpretation of the 14th Amendment addresses all forms of birth tourism, foreign nationals will continue to exploit U.S. citizenship.

Emma Waters is a researcher in the DeVos Center for Life, Religion, and Family at The Heritage Foundation.