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Will a Trump Presidency impact surrogacy in the US for UK parents?

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 of office, President Trump signed an Executive Order to declare that children born in the United States would no longer be entitled to United States citizenship if their parents are not US citizens or Lawful Permanent Residents. 

It is understandable that people either undertaking or about to embark upon, surrogacy arrangements will wonder what the impact will be.

The Executive Order in question has already been challenged by a number of States. The President cannot simply declare changes to the Constitution. Amendments to the Constitution require a vigorous process involving the approval of both Houses of Congress and ratification from three-quarters of the States. In the current landscape, it's difficult to envisage how such an amendment could be achieved. 

The Executive Order is due to come into effect on 19 February, but a Federal Judge in one State (Washington State) has already declared the order to be unconstitutional and temporarily blocked the order. In doing so, Senior US District Judge John C. Coughenor said “I have been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.” 

The issue is likely to be tied up in litigation for some time to come.  Until that litigation has been resolved (possibly by the Supreme Court of the United States), the order will almost certainly be put on hold. 

In the meantime, our assisted reproductive law colleagues in the USA are collectively busy with contingency planning. The Executive Order was not designed with surrogacy in mind and does not reference surrogacy.

It was intended to target the children of parents illegally in the United States. Intended Parents are unlikely to illegally enter the United States. There may also be arguments that the child derives a claim to US citizenship through their surrogate (who will almost always be a US citizen or Lawful Permanent Resident). 

In a worst-case scenario, surrogate-born children will not be entitled to US citizenship. If this happened, children born through surrogacy in the USA would be in a similar position to children born through surrogacy in other popular surrogacy destinations (since most surrogacy destinations outside the USA do not recognise surrogate-born children as citizens). 

In this case, it will be necessary to explore options to obtain British (or another) citizenship and passport before returning home. There is a route to achieve this, and it's not uncharted territory. In 2020, for example, the US Government suspended the issue of US passports save for emergencies. Surrogacy was not considered an emergency and international intended parents were required to secure citizenship for their children.

The UK Government were receptive, and put into place measures to allow for emergency passports to be obtained. Should the worst-case scenario come to fruition, the UK Government would certainly be lobbied to re-introduce this or a similar procedure. There would, however, be ways to secure travel documents. 

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. 

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