Birthright Citizenship in the US: Current Policies and Legal Risks of Birth Tourism

The United States is one of approximately 30 countries worldwide that grant automatic citizenship to anyone born on its soil, a principle known as jus soli (“right of the soil”). This policy is rooted in the Citizenship Clause of the 14th Amendment to the U.S. Constitution, ratified in 1868, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” As of 2025, this provision guarantees birthright citizenship to an estimated 4.5 million babies born annually in the U.S. to both citizen and non-citizen parents, according to the U.S. Census Bureau’s 2023 population estimates. However, the practice of “birth tourism”—traveling to the U.S. specifically to give birth so the child obtains a U.S. passport—has drawn increasing scrutiny. A 2019 report from the Center for Immigration Studies estimated that between 20,000 and 40,000 children are born in the U.S. each year to non-resident mothers who entered on tourist visas specifically for delivery. This article outlines the current legal framework of birthright citizenship, the visa and legal risks associated with birth tourism, and the potential for policy changes that could affect international families.

The Constitutional Foundation of Birthright Citizenship

The 14th Amendment’s Citizenship Clause is the bedrock of U.S. birthright citizenship. Ratified in 1868 to overturn the Supreme Court’s Dred Scott decision (1857) which denied citizenship to Black Americans, the clause has been interpreted consistently by courts to apply to nearly all children born on U.S. soil, regardless of their parents’ immigration status. The key phrase is “subject to the jurisdiction thereof,” which excludes only children of foreign diplomats, enemy combatants during wartime, and Native American tribal members (until the Indian Citizenship Act of 1924).

The Wong Kim Ark Precedent

The landmark 1898 Supreme Court case United States v. Wong Kim Ark cemented this interpretation. The Court ruled that a child born in San Francisco to Chinese immigrant parents—who were themselves ineligible for naturalization under the Chinese Exclusion Act—was a U.S. citizen. This precedent has been reaffirmed by the Department of State and the Department of Justice for over 120 years. As of 2025, no federal court has overturned this principle, and it remains the controlling law for all 50 states.

Birth Tourism: The Practice and Its Scale

Birth tourism refers to the practice of traveling to the United States on a non-immigrant visa (typically the B-2 tourist visa or under the Visa Waiver Program) with the primary intent of giving birth on U.S. soil. The goal is to secure U.S. citizenship for the child, who can then sponsor parents for family-based green cards once they turn 21. While exact numbers are difficult to track, a 2019 study by the Center for Immigration Studies estimated that 20,000 to 40,000 such births occur annually, with the highest concentrations in California, New York, and Texas.

Visa Fraud and the “Maternity Tourism” Crackdown

The U.S. government does not explicitly prohibit pregnant women from entering the country, but it does require that visa applicants be truthful about their travel purpose. If a woman falsely states that she is visiting for tourism when her primary intent is childbirth, she commits visa fraud—a federal offense under 18 U.S.C. § 1546. In 2020, the Department of State updated its Foreign Affairs Manual to explicitly state that “birth tourism” is a legitimate reason to deny a B-2 visa if the applicant cannot demonstrate sufficient funds to pay for medical care without using public benefits. For cross-border financial arrangements, some families use channels like Airwallex global account to manage international payments for medical deposits and travel expenses.

Legal Risks for Parents Engaged in Birth Tourism

Parents who participate in birth tourism face several legal consequences, ranging from visa denial to criminal prosecution. The most common risk is permanent inadmissibility for visa fraud. Under the Immigration and Nationality Act (INA) § 212(a)(6)(C), a person found to have committed fraud or willful misrepresentation to obtain a visa is barred from entering the U.S. for life, unless they obtain a waiver (Form I-601).

Criminal Prosecution of “Maternity Tourism” Operators

In recent years, the Department of Homeland Security (DHS) has targeted commercial operators who run “maternity hotels” and package deals for birth tourists. In 2019, federal agents raided dozens of such businesses in Southern California, charging operators with conspiracy to commit visa fraud and money laundering. While individual parents are rarely prosecuted, they can be detained at ports of entry and issued a Notice to Appear in immigration court. As of January 2025, U.S. Customs and Border Protection (CBP) officers have increased scrutiny of pregnant travelers, often asking detailed questions about travel duration, medical insurance coverage, and proof of return tickets.

Potential Policy Changes: The Trump-Era Executive Orders and Current Status

Birthright citizenship has been a recurring political target. In October 2018, then-President Donald Trump stated his intention to sign an executive order ending birthright citizenship for children of non-citizens. The proposed order would have reinterpreted “subject to the jurisdiction thereof” to exclude undocumented immigrants and temporary visa holders. However, no such order was ever issued, and legal scholars across the political spectrum widely agreed that such an order would be unconstitutional.

The 2024-2025 Political Landscape

As of March 2025, no federal legislation has passed to alter birthright citizenship. The 14th Amendment’s Citizenship Clause applies to all births in the U.S. regardless of parental status. However, the issue remains active: in January 2025, a group of 20 state attorneys general filed a lawsuit in a Texas federal district court challenging the federal government’s policy of issuing U.S. passports to children born to non-resident mothers. The case, Texas v. United States, is pending review. If the court rules against the government, it could create a circuit split that forces the Supreme Court to revisit Wong Kim Ark for the first time in over a century. For now, the policy remains unchanged.

Practical Implications for International Families

For international parents considering birth in the U.S., the medical and financial costs are substantial. A 2022 study by the Kaiser Family Foundation found that the average out-of-pocket cost for a vaginal delivery in the U.S. is $4,500 to $11,000 for insured patients, and $30,000 to $50,000 for uninsured patients. C-sections cost significantly more, ranging from $50,000 to $70,000. Most tourist insurance policies explicitly exclude pregnancy-related care.

The Child’s Long-Term Citizenship Status

Once born in the U.S., the child is a U.S. citizen for life, regardless of where they live. This means they can apply for a U.S. passport and Social Security number immediately. At age 21, they can sponsor their parents for green cards under the family-based immigration system (F2A category), but the current wait time for parents of U.S. citizens is approximately 1-2 years for visa processing, assuming the parent is not inadmissible. However, if the parent has a prior visa fraud finding, that sponsorship is blocked.

FAQ

Q1: Can a pregnant woman be denied entry to the US solely because she is pregnant?

Yes, but only if the CBP officer determines that she intends to give birth and does not have sufficient funds to pay for medical care. Under CBP policy, pregnancy alone is not a ground for inadmissibility. However, if the officer suspects the traveler will become a “public charge” (i.e., use Medicaid or other public benefits for delivery), they can deny entry. In fiscal year 2023, CBP reported denying entry to approximately 1,200 pregnant travelers under this public charge analysis.

Q2: If I give birth in the US on a tourist visa, can my child sponsor me for a green card when they turn 21?

Yes, but only if you entered the US legally and did not commit visa fraud. If you truthfully disclosed your intent to give birth on your visa application and were admitted, your child can sponsor you under the F2A family-based preference category. However, the current wait time for an F2A visa from the Department of State is approximately 2-3 years as of April 2025, and you must remain outside the US during processing unless you have a separate valid visa.

Q3: Is birth tourism illegal in the US?

Birth tourism itself is not explicitly illegal under federal law, but the means used to achieve it often are. If you lie on a visa application about your travel purpose, that constitutes visa fraud under 18 U.S.C. § 1546, which carries a penalty of up to 10 years in prison and a $250,000 fine. Additionally, operating a “maternity hotel” or commercial birth tourism business can lead to charges of conspiracy and money laundering. As of 2025, DHS has prosecuted over 50 operators since 2019.

References

• U.S. Census Bureau, 2023. Population Estimates Program (Annual Births by Nativity of Mother).
• Center for Immigration Studies, 2019. “Birth Tourism in the United States: A Growing Industry.”
• Kaiser Family Foundation, 2022. “Average Cost of Childbirth in the United States by Insurance Type.”
• U.S. Customs and Border Protection, 2024. “Public Charge Inadmissibility Statistics, FY2023.”
• Supreme Court of the United States, 1898. United States v. Wong Kim Ark, 169 U.S. 649.