In 1896, the body of a baby, wrapped in a bag, was fished out of London’s Thames river. An investigation led to the hanging of Amelia Dyer, a “baby farmer” who had killed hundreds of children.
In the Victorian era, unwed motherhood was shameful and economically ruinous for the poor. It was an opportunity, however, for “baby farmers.” These were brokers who took infants from poor women and, in the best cases, gave them to wealthier couples. The brokers made a profit on both ends. The plot of Gilbert and Sullivan’s “H.M.S. Pinafore” turns on the switching at birth of the captain and a sailor by a baby farmer.
In our century, we have a new form of baby farming. And it’s far more troubling than the Victorian variety. Cross-border “assisted reproductive technology,” or ART, enables parents living in one country to pay a surrogate mother in another country to gestate a baby using their sperm or egg. It’s the ultimate outsourcing of, well, labor.
The business is so sleazy that it’s illegal in China. But that doesn’t keep rich Chinese from going abroad and using foreign surrogate mothers. For the last decade, hundreds a year have used surrogates in the U.S. The whole process can cost well over $100,000.
In America, surrogacy is governed by state law, sometimes loosely. California lets its residents rent their uteri out to foreigners. It can all be done remotely. Sperm, eggs or even embryos can be shipped to laboratories in the U.S. for assembly and surrogates hired for gestation. The parents need not travel here until the baby is ready for, um, delivery.
In California, you need an ID to adopt a pet, and “the adoption center has a right to turn away anyone who isn’t deemed fit for adoption.” Yet, with no background check, foreigners can manufacture a child in this bluest of states.
Because of our lax immigration and nationality law, children of foreign nationals born to U.S. surrogate mothers are American citizens at birth. These children enjoy the right to free school and health and welfare programs, although U.S. authorities may have no records of, much less tax information for, their legal parents. As Emma Waters writes in The American Mind, “neither the state, nor federal agencies, nor medical providers track surrogate births” in the U.S.
The rules about passing on American citizenship have changed over time. Until recently, they required at least one U.S. citizen parent to have lived for some time in the U.S. In 2021, under legal pressure from same-sex couples using ART, the State Department re-interpreted the nationality rules. Now, it merely requires one of a foreign-born child’s parents to have a “genetic or gestational” tie to a child for it to be an American citizen.
Then, in February, the State Department announced matching changes to its Consular Report of Birth Abroad form. Now, an American citizen mother can combine sperm and egg from anyone, anywhere in the world. And when she gives birth—in a foreign country—the resulting child will be an American citizen despite having no genetic connection to even one U.S. citizen.
Under current rules, a child born in China to a Chinese-citizen mother using an anonymous sperm donor (from any country) can still be a U.S. citizen at birth, as long as the mother is married to a U.S. citizen.
Or a single American male could mail his frozen sperm to another country, have a lab match it with a purchased egg, and pay a surrogate in that country to gestate an American citizen for him, ready for pickup nine months later.
Even if some children born to American citizen parents overseas through ART lack their genes, they will still probably live, work, and pay taxes into our federal and local systems to fund any future benefits they get. In contrast, the hundreds of children born in the U.S. to foreign parents who take them back to their home countries soon after birth pay nothing into U.S. tax systems.
Yet they can show up at any time and reap the rewards of citizenship when they want to. That includes immigration benefits like petitioning to bring their foreign parents and siblings over once the child is over 18.
And what happens if the foreign parents change their minds and don’t want the child being gestated in the U.S.? That depends on each state’s family law—and it can get messy. Surrogacy scandals in Thailand led that country to ban surrogacy for foreign parents in 2015.
Victorian baby-farming was a sordid business born of desperation. In the 21st century, it’s a lucrative and cynical exercise. It exploits outdated, lax citizenship and immigration laws, and is fueled by a technology born in a moral vacuum.
“China prohibits all kinds of surrogacy,” according to the Central Committee of the Communist Youth League of China, and “human lives are not toys.” It’s a bad sign when we let Communist China take the moral high ground.
China, India, Thailand, and other countries at least prohibit foreigners from hiring surrogates to have their children. To protect women, children, and the value of our citizenship, it’s time for the U.S. to follow suit.
(Simon Hankinson is a senior research fellow in The Heritage Foundation’s Border Security and Immigration Center.)
