Andy Semotiuk – Pace Law Firm

Andy Semotiuk – Pace Law Firm: Roughly one out of every 12 newborns in the United States can be classified as a so-called ‘anchor baby.’ Pew research shows that some 295,000 children were born to undocumented immigrants in 2013. The number of pregnant ‘birth tourists’ who come to the US legally to take advantage of the fact that all persons born in the United States are citizens of the United States was recently estimated at 36,000 a year. Meanwhile, in Canada:

Health ministry investigators are aware of more than two dozen so-called birth houses in B.C. offering pregnant foreign mothers temporary room and board before and after giving birth in local hospitals, according to Freedom of Information documents obtained by Postmedia. The baby houses, as they are called in Asia, are used by women seeking instant Canadian citizenship for their newborns.

There is a big problem brewing for both countries. Who is paying for the initial and future medical costs of these births, as well as the down-the-road educational costs and any social benefits these children may be entitled to?

Birth Tourism

To put the matter into sharp perspective, consider the recent story of a Honduran women who is believed to be the first foreign woman to have a Zika baby born in the New York area. Who exactly is to pay the estimated cost of treatment of this child that could amount to over $1 million? This problem could be even more acute in the Canadian context because the health care system there provides “free” coverage to all Canadian citizens.

In the U.S., as I have discussed before, “birth tourism” is a flourishing business. Pregnant women fly in, stay at special hotels and pay sometimes extraordinarily high costs for “concierge services” designed to facilitate the birth of their children. The benefit to the family is that the child is thereby eligible to claim U.S. social welfare, be educated at much lower cost and obtain certain medical benefits for life.

Various court challenges have tried to block this practice. In 2015, Texas stopped giving birth certificates to parents who could not produce U.S.-issued documents for themselves. What was more, Texas stopped recognizing the Mexican consulate-issued matrícula consular as an identity paper. But such state efforts to frustrate birth tourism have run up against the prohibition of the 14th Amendment to the effect that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …”

A Canadian Dilemma

In Canada, the issue of birth tourism is also a source of concern. Like similar past American efforts, Kerry Starchuk from Richmond, B.C. launched an online petition to the House of Commons in June, 2016 calling on the federal government to stop granting citizenship to newborns unless one of the parents is a Canadian citizen or a permanent resident. The petition needed 500 votes to be considered by the House of Commons, but has gathered more than 8,ooo signatures to date.

Surrogacy

An even more troublesome problem in the United States and particularly in Canada is surrogacy. Surrogacy, that is to say an American or Canadian woman having a child for foreigners who are unable to give birth, could become an explosive problem. Unlike in the U.S., where surrogacy rules are based on individual states – it’s banned in NY but legal in California, for example – Canada as a whole is becoming a magnet for surrogacy for the following reasons: excellent in vitro fertilization clinics, legal equality of access to health care regardless of sexual orientation or marital status, obscure and vague laws on the subject and the low Canadian dollar.

While from a health and human rights perspective it may not be desirable to limit a surrogate’s access to prenatal care, the question is who is going to pay for such care? If a surrogate is bearing a child for non-residents, shouldn’t her medical costs be charged back to the non-resident commissioning parents? Should prenatal medical services in such cases be offered for a fee to be paid by foreign clients? Alternatively, should commissioning parents be required to make a charitable contribution to a local hospital or children’s medical centre in order to gain access to medical care for their surrogate?

A Looming Problem

Anchor babies, birth tourism and surrogacy are pushing the envelope of citizenship rights in North America. People are rightfully becoming more concerned about those who take advantage of “free and easy” citizenship so that their children can benefit from social, educational and medical programs. The question is what should be done about it?

In my view, laws should be adopted to make the facilitation of birth tourism illegal with the confiscation of any money a person gains from such facilitation. Further, laws should be passed to require surrogate mothers to sign an agreement to be personally liable for all medical costs associated with the birth of a child of foreign parents and require foreign parents to post a bond to cover all foreseeable medical costs as part of the arrangement.