The United States has a longstanding reputation for being the go-to destination of choice for international surrogacy. There are a number of reasons for this, but undoubtedly many international parents are attracted by the availability of a US passport for surrogate-born children.
To date British citizens undertaking surrogacy in the USA can return home with their baby much sooner than in other surrogacy destinations. This is because, even if the child is British from birth, it is almost always faster to obtain a US passport for the child, than it is to obtain a British passport.
Most British parents will therefore plan to obtain a US passport for their baby to return home to the UK before resolving their child’s status in the UK.
Birthright citizenship in the USA
The Fourteenth Amendment of the United States Constitution provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
On his first day in office in January 2025, President Trump signed an Executive Order seeking to restrict automatic US citizenship for certain children born in the United States to parents who were neither US citizens nor lawful permanent residents. The order generated immediate concern among international intended parents pursuing surrogacy arrangements in the USA, particularly around whether they could still obtain a US passport for a child born through surrogacy in the US.
However, the Executive Order never took effect. Multiple federal courts blocked its implementation, and the issue later became the subject of Supreme Court proceedings.
The substantive constitutional question has now been resolved. On 30 June 2026, the US Supreme Court struck down President Trump's Executive Order and confirmed that children born in the United States to parents who are unlawfully or temporarily present in the country are citizens at birth under the Fourteenth Amendment. The Court reaffirmed the long-standing understanding of birthright citizenship.
For intended parents pursuing surrogacy in the USA, this development provides significant reassurance that, subject to the particular facts of each case, children born through surrogacy in the United States should continue to benefit from the same birth right citizenship principles that have historically applied. That said, future legislative or constitutional reform proposals cannot be ruled out.
At present, the USA remains an attractive destination for international surrogacy, not only because of its established legal framework, availability of surrogates, experienced professionals and agencies, and availability of pre- or post-birth orders in many states, but also because US citizenship and US passports for children born there may continue to assist families in navigating immigration issues when returning home.
As always, intended parents should take specialist legal advice both in the USA and in any jurisdictions with which they have a connection, to ensure that citizenship, immigration and parentage issues are properly addressed before entering into any surrogacy arrangement.
Anti-abortion laws
In 2022 there was a well-publicised decision of the US Supreme Court in Dobbs v Jackson. This decision overturned the previous decision of the US Supreme Court in Roe v Wade (1973) which had prevented individual states from banning abortion. The effect of the Dobbs decision was to leave the question of abortion to the individual states.
In reality, even before Dobbs, abortion services were easier to access in some states than in others (for example due to more limited permitted time periods in which abortion was lawful).
Some people wonder why abortion is an important topic in the context of surrogacy. After all, surrogate pregnancies are planned for and wanted and it may appear counterintuitive. However, there may be circumstances in which pregnancies are terminated in surrogacy arrangements, and the lack of choice to make that decision may deter surrogates or parents from embarking upon arrangements in jurisdictions where abortion is not permissible.
The current legal position in relation to abortion laws is specific to each state. Some states have amended their own constitutions to protect access to abortion. Surrogates in states where abortion is now unlawful can travel to another state should the eventuality arise. Assisted reproduction lawyers in the USA have been working around these issues since the Dobbs decision in 2022.
Despite President Trump’s campaign against abortion, he has stated that he would not sign a federal abortion ban, leaving it to the individual States to continue to decide the issue (although his position on this did change from supporting a national abortion ban).
Impact on IVF
IVF could potentially be impacted by abortion restrictions, resulting from the wording of abortion bans which define embryos as a “person”. The impact on IVF is the storage of embryos.
In early 2024, Alabama’s Supreme Court ruled that frozen embryos had the same rights as children in the context of a wrongful death claim brought when frozen embryos had been destroyed in error through the fertility clinic’s negligence.
A number of IVF clinics in Alabama paused treatment after the ruling, until Alabama lawmakers passed a bill to protect clinics and doctors from lawsuits.
Impact on surrogacy generally
Surrogacy in the US is more socially and culturally acceptable than in much of the world. Even conservative states such as Texas, have liberal surrogacy laws. Even so, family law is not a federal issue in the US and surrogacy laws are determined by the individual states. A nationwide attack on surrogacy does not seem likely.
Conclusion
The US will continue to be the go-to destination for international surrogacy regardless of who occupies the Oval Office.
Our national team includes some of the UK’s leading specialist surrogacy lawyers. We have experience working with clients who have undertaken surrogacy in countries around the world.
We continue to monitor developments at home and overseas through our network of specialist lawyers in those jurisdictions affected and memberships of international legal organisations so that we can provide holistic advice to clients undertaking surrogacy in the USA or elsewhere.
This blog has been updated on 1 July 2026 to reflect the US Supreme Court decision.
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