The business of birth tourism is perfectly legal as long as immigrants are able to pay their own way.
The State Department and Department of Homeland Security have no specific regulations banning pregnant foreigners from entering the United States. But officials say they can and do turn away pregnant women with obvious designs on coming to the United States to take advantage of free medical care.
"When determining if an individual will be allowed to enter the U.S., Customs and Border Protection officers take into consideration the date the child is due for delivery and the length of time the individual intends to stay in the U.S.," a Department of Homeland Security spokesman said.
Still, critics say the practice largely goes unchecked and exploits the true meaning of the 14th Amendment to the U.S. Constitution, enacted after the Civil War to grant citizenship to descendants of slaves.
"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," the amendment reads.
"It's really an incorrect interpretation of the 14th Amendment," said Jerome Corsi, a conservative author and columnist who has studied the issue of birth tourism. "Birthright citizenship is a loophole … [and] as it expands into a business for entrepreneurs in foreign countries who offer birth tourism packages, it markets the loophole to attract additional mothers to the U.S."
Lino Graglia of the University of Texas law school wrote in the Jan. 11 Texas Review of Law & Politics that the authors of the 14th Amendment never would have imagined their words bestowing citizenship to illegal or visiting immigrants.
"It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry," Graglia wrote of birthright citizenship.
The Supreme Court has only addressed the issue once, ruling in 1898 that citizenship applies to U.S.-born children of legal immigrants who have yet to become citizens.
Some legislators, including U.S. Rep. Gary Miller, R-Calif., have called for revising the Constitution to forbid citizenship by birth alone and thereby end the attraction of birth tourists. But other politicos, from both sides of the aisle, say such an approach is politically unrealistic, not to mention unnecessary.
"You just turn people down for being pregnant," said Mark Krikorian of the Center for Immigration Studies. "That should be the default position and then there'd have to be some very good reason for an exception."
Krikorian acknowledged that some people might find a ban on pregnant visitors "outrageous," but questions the rationality of the alternative.
"Do you really think that's right that somebody here visiting Disneyland should have their children be U.S. citizens, which they'll then inevitably use to get access to the U.S.?" he asked.