IFLG-Trump-Administration-Executive-Order-re-Birthright-Citizenship-and-what-it-means-for-Surrogacy-Rich-Vaughn

Trump Administration Executive Order re: Birthright Citizenship and what it means for Surrogacy

We know many of our clients and professional colleagues are confused and concerned about whether Mr. Trump, who’s second term started today, can eliminate or impact birthright citizenship in the U.S. and whether this will have any impact on the children born to intended parents coming to the U.S. for surrogacy.

The short answer is:  any contemplated changes here will at most be extremely limited and will likely have no impact on intended parents coming to the U.S. for surrogacy. We will continue to monitor developments on this topic, we will post relevant updates, and we are always available to answer any questions in this regard.

 

For the long answer to this question, please see below.

Trump’s administration is seeking a new interpretation of the constitutional right of citizenship for children born on U.S. soil. For now, the new interpretation he is seeking through his executive order is that children of PARENTS WHO ARE ILLEGALLY (residing) in the country would not qualify for birthright citizenship. Because intended parents from other countries engaging in surrogacy in the U.S. are not residing in the U.S. illegally, this interpretation should have no impact on surrogacy.

Litigation has already been filed to block this order because birthright citizenship under the U.S. Constitution is not conditioned on the status of the parents and asking the U.S. State Department to violate federal law (to stop issuing passports to those legally entitled to them) is illegal. The U.S. government has long interpreted the 14th Amendment of the Constitution as granting a right of citizenship for those born on American soil, regardless of their parents' immigration status. In the meantime, citizenship and passports for ALL children born in the U.S. will continue to be granted unless and until the U.S. Constitution is changed, and this is extremely unlikely.

Birthright citizenship (citizenship by being born on U.S. soil) has been a cornerstone of the 14th Amendment to the U.S. Constitution since 1868. Changing this, requires a change to the U.S. Constitution, which is indeed quite hard to achieve. The U.S. Constitution provides that an amendment may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the U.S. Constitution have been proposed by constitutional convention. Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. A proposed amendment, once approved through the above process, only becomes part of the Constitution when it is subsequently ratified by three-fourths of the States (38 of 50 States). Getting this much consensus on changing something that’s been a cornerstone of the U.S. Constitution for over 150 years.

In the meantime, if such an executive order is deemed legitimate in whole or in part, which is unlikely, it would still likely not apply to intended parents from other countries engaging in surrogacy in the U.S. simply because the scope of the order is to apply to children of parents are residing in the country illegally.

There is one other way in which Trump’s administration could potentially attack this cornerstone of birthright citizenship in the U.S. – attempting to overturn a Supreme Court ruling in 1898 in the case of United States vs. Wong Kim Ark. The Court ruled in this case that a man born in San Francisco to parents who were both from China was a U.S. citizen. The parents were both admitted legally into the U.S. In the ruling in that case, it was assumed that whatever the status of their parents, people born in the U.S. have citizenship. Birthright citizenship critics argue that the ruling did not address whether the children of parents who entered the country illegally are U.S. citizens (again, in the 1898 case, the parents had been lawfully admitted.) Birthright citizenship critics suggest the ruling assumes that the children of people who enter the country illegally do not have citizenship, but the court never said that because it was not the issue before them in that case.

As noted above, intended parents from outside the U.S., engaging in surrogacy in the U.S., fall under a different category unrelated to this: intended parents are not immigrants to the U.S. If the Trump administration seeks to challenge and overrule “Wong Kim Ark”, the process would take quite some time to work its way through the court. However, as noted above, intended parents from other countries coming to the U.S. for surrogacy are not immigrating to the U.S. and so there is no question of whether they are legal or illegal immigrants to the U.S.; therefore, what happens with this case is likely not relevant to children born via surrogacy to non-U.S. citizen intended parents.

Finally, in a worst-case scenario, if all of the above analysis was proven wrong, there is still a viable alternative for children born in the U.S. via surrogacy to intended parents from other countries. Such children could obtain a Laissez Passer from the home country’s Embassy or Consulate here in the U.S. and the baby would travel home on that travel document. [Note: this approach was utilized in the early days of the COVID pandemic, when the U.S. Passport Office was shut down.]

IFLG will continue to monitor this closely and we will be updating our advice on this issue as the story unfolds. Please reach out to us with any questions.

Richard Vaughn
webmasterneimark@gmail.com

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI BOONE
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Kim
KIM LETZKUS
Paralegal

Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler
PHOEBE S. SADLER
Associate

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan
RUBINA ASLANYAN
Paralegal

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Alexander Espinoza
ALEXANDER ESPINOZA
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Cara Stecker
CARA STECKER
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble
STEPHANIE KIMBLE
Paralegal

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
TRISH PITTMAN
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Katie Deaquino
KATIE DEAQUINO
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Elsa Jimenez
ELSA JIMENEZ
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.