... Because Everyone Can Build a Family

As many of you are aware, President Trump made headlines yesterday by announcing that he plans to end the US birthright policy through an executive order.

Let’s start with some background: A birthright to US citizenship is a constitutionally protected right. The Fourteenth Amendment (adopted in 1868) contains the Citizenship Clause, which states:

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.

Lawyers know that the US Constitution cannot be changed or amended without a Constitutional Amendment, which is no small endeavor.  No US President has the authority to change the Constitution by executive order. Therefore, any such order will be immediately challenged in court and struck down – and hopefully “stayed” while it goes up on appeal. That is, a court would issue an injunction to pause the immediate enforcement of the executive order while the matter is decided at the appellate court levels.

This is a prime example of why it is important that CFC is not just a surrogacy agency, but a law firm. Upon hearing the news yesterday morning, our legal team immediately strategized. What would we do in the event that such an executive order does go into effect before it is ultimately struck down by the courts?

One of our surrogates helped us in one of our international cases – She gave birth early this morning, earning US citizenship for the baby before any such executive order is signed!

For other cases in which court orders have already been signed, we will look for a Plan B – For example, in one case involving UK dads, the GC is not married. Because she is single, the parents will be able to obtain a UK passport and proceed home using that passport, even if the executive order takes effect.

For cases in which court orders have not been signed, we will consider opting for a 2-step birth certificate process: If the GC goes on the first birth certificate with the bio dad, then she can bestow her US citizenship to the baby. Then, we will immediately work to obtain a second birth certificate – either with both parents or with the bio dad only, depending on the country and country’s registration requirements.

For cases in which parents have not yet been matched, we still have lots of time to see how this plays out.  Trump may be all talk at this point! If not, and if he does in fact sign an executive order and the order is challenged in court and stayed, then the order will be a non-issue (this executive order again is unquestionably unconstitutional and will ultimately be struck down). If the executive order is signed and goes into effect while the litigation is playing out in court, then we will come up with a Plan A/Plan B strategy that works for all of our clients, based on their home country. This may entail either a 2-step process or matching certain clients to an unmarried GC candidate so that they can travel back on their country’s passport. We will determine our strategy on a case-by-case basis.

The bottom line is that there is no need to panic. Our hope is that the birthright remains intact – either because saner heads prevail at the White House or because the courts do not allow it to go into effect and strike it down as unconstitutional. However, we are already working on alternative strategies in case it goes into effect in the interim.

We will share more as things develop.

 

Diane Hinson is an elected Fellow of the American Association of Assisted Reproductive Attorneys (AAARTA). She is also a member of the American Bar Association’s Reproduction Law Committee on Assisted Reproductive Technology. Diane is a professional member of the RESOLVE organization (an organization that provides education, advocacy and support to men and women facing infertility issues), as well as a professional member of ASRM (the American Society of Reproductive Medicine) and a member of its Legal Practices Group. A cum laude graduate of Harvard Law School and a member of the District of Columbia, Virginia, and Maryland Bars, Diane was the first woman to serve as General Counsel of the FCC, and the owner and founder of Creative Family Connections.