A series of federal arrests in California last month has brought the issue of what’s known as birth tourism back into the news. In this case, nearly two dozen people were charged for arranging visas and transportation for pregnant women, primarily from China, who came to California for the purpose of giving birth and obtaining a US birth certificate for their babies. They then returned home to China. While technically legal, this seems to fly in the face of what our laws intend. (Daily Mail)

The largest-ever crackdown on ‘birth tourism’ businesses that help Chinese women travel to the United States to deliver ‘anchor babies’ has resulted in twenty arrests.

Three people – Dongyuan Li, 41, Michael Wei Yueh Liu, 53, and Jing Dong, 42, were arrested in Southern California on charges including conspiracy, visa fraud and money laundering.

More than a dozen others, among them Li’s business partner Chao Chen, have also been charged in cases stemming from three so-called birth tourism businesses.

Many of the suspects believed to be currently living in China, and the crackdown marks the first time the United States has criminally prosecuted birth tourism operators, said the U.S. attorney’s office.

This case raises some interesting questions, particularly in terms of what the suspects are being charged with. In almost all cases it’s a charge of fraud. But can they really be convicted? The companies were helping to arrange legal visas and, as the linked report points out, it’s not against the law to visit the United States while pregnant. There is also no law against a non-citizen giving birth on American soil. Clearly, they were telling the women that the purpose of the trip was to give birth and obtain a US birth certificate for their child, so where is the fraud?

The major issue here may be that what they’re doing isn’t against the law… but it should be. And perhaps it’s time to take a fresh look at our laws regarding such questions.

Our current view of “natural born citizens” is clear. Even if the parents moved here – and live here, intending to remain – but are not yet citizens, children born on American soil get a birth certificate and are citizens, fully entitled to all normal rights and privileges, up to and including running for president. But what if the parents had no allegiance or ties to the United States and paid someone to allow the mother to come here and give birth, only to immediately return to their true home with a baby and a US birth certificate in hand?

I’m reminded of a situation described by one of the hosts of a podcast I subscribe to and listen to faithfully. It’s hosted by two gentlemen in Australia, one of whom was expecting the birth of his first child in December with his wife. She was described as being “half American” due to having one American parent, but they’ve lived their entire lives in Australia. As the due date approached he was missing some shows and then calling in to record episodes because he’d suddenly left for Hawaii.

He described in a very matter of fact fashion how they had consulted with her OB-GYN about the last possible date she could fly while very pregnant. The birth went as expected in a Hawaiin hospital, but he later recounted his frustration and annoyance over being “stuck there” for a couple of weeks because it was taking too long to get the birth certificate. Once they obtained it, the couple flew back home to Australia with their new baby and his freshly minted American birth certificate. They intend to remain living in Australia.

In what way is that child an American citizen? The parents owe us no loyalty. They have no roots in America. They don’t intend to live here or contribute to our economy or serve our country in any fashion. But just because the mother hopped on a plane and flew a dozen hours to show up at a Hawaiin hospital, that child is now a US citizen for life? As I said above, that may fit the letter of the law as currently interpreted, but it doesn’t pass the smell test for the spirit of the law.

It shouldn’t take a constitutional amendment to fix this because birthright citizenship isn’t clearly spelled out in the Constitution. It’s interpreted in 8 U.S. Code § 1401. If the will exists in Congress, they could change the text of that law and define who is actually living in the United States and demonstrating an intention to remain here as it applies to handing out US birth certificates. Not that I expect the Democrats to allow that to happen of course, but at least in theory we could do it.