The Fourteenth Amendment to 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…” This long-standing principle of birthright citizenship has historically meant that most children born in the USA acquire US citizenship at birth.
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 whose parents were neither US citizens nor lawful permanent residents. The Order generated immediate concern among international intended parents pursuing surrogacy arrangements in the USA, particularly about whether they could still obtain a US passport for a child born there through surrogacy.
That earlier Order did not take effect because federal courts blocked its implementation. Further legal proceedings followed ultimately resulting in the US Supreme Court’s decision on 30 June 2026 which confirmed that children born in the US to parents who are unlawfully or temporarily present int eh country are citizens at birth under the Fourteenth amendment. However, the wider debate about the scope of birthright citizenship has continued.
Against that background, on 6 August 2026 President Trump signed two further Executive Orders - Ending Birth Tourism and Continuing to Protect the Meaning and Value of American Citizenship - which may affect some international intended parents pursuing surrogacy in the United States.
What do the Executive Orders say?
One Executive Order directs US federal departments and agencies not to issue documents recognising US citizenship in certain circumstances. This includes where neither parent is a US citizen and the parents have entered into a commercial arrangement with a surrogate who is in the US to give birth. The other Executive Order seeks to prevent foreign nationals from using non-immigrant visas to enter the US for the purpose of giving birth.
The practical effect for international surrogacy arrangements is not yet clear. Relevant US departments and agencies have been directed to issue implementation guidance within 30 days, and further legal developments may follow. Although the earlier January 2025 Executive Order was blocked and it seems likely that legal action will follow regarding these new Executive Orders intended parents should not assume that this will follow or that there will be a stay on implementation of the Executive Orders pending legal action.
What could this mean for UK-based intended parents?
If neither intended parent is a US citizen, you may understandably be concerned about whether you can travel to the US using a visa or ESTA and whether your child will be eligible for a US passport to travel home. Important questions remain unanswered, including:
- Whether intended parents will be treated as “birth tourists”, even though they are not themselves travelling to give birth.
- When and how legal parentage will be assessed, including whether a pre-birth or post-birth order will be recognised.
- Whether an intention to obtain US citizenship must be established, or whether entering into a compensated surrogacy arrangement in the US could itself be enough to affect the child’s entitlement to citizenship documents.
The new Executive Orders are expected to face legal challenge. They also sit within a continuing constitutional debate about birthright citizenship. However, families planning or already progressing a US surrogacy arrangement should not wait for the position to become clearer before seeking advice. You should obtain coordinated advice in the US and in every country where you live or hold nationality, to understand the available options for addressing immigration issues and obtaining travel documentation for your child.
Could your child obtain a British passport?
Depending on your circumstances, it may be possible to apply for a British passport for your child. The available route will depend on factors including the intended parents’ nationality, who has a genetic connection to the child, the surrogate’s marital status and how legal parentage is treated under UK law.
In some cases, an application to register the child as a British citizen may be needed before a British passport application can be made. These processes (including an application for a British passport) can take time and may result in the family remaining in the US for longer than expected. It is not yet known whether the Home Office will introduce any expedited arrangements in response to the Executive Orders.
The availability of a US passport for children born through surrogacy arrangements in the US has traditionally helped many families navigate immigration and travel arrangements when returning home to the UK quickly. The present uncertainty makes it particularly important to consider alternative nationality and passport routes at an early stage.
What should intended parents do now?
Take specialist advice as early as possible, ideally before committing to a US surrogacy arrangement or making travel plans. Early planning can help you understand the possible routes to secure your child’s status and travel documentation, identify likely timescales and prepare for contingencies if travel on a non-immigrant visa or ESTA will not be possible or a US passport is unavailable. If you are currently undergoing a US surrogacy arrangement taking advice now will help you assess the options and put in place contingencies.
Our specialist fertility and surrogacy lawyers regularly advise clients on international surrogacy arrangements, including those in the US. We work closely with our immigration specialists and trusted US advisers to provide coordinated advice on parentage, nationality and travel documentation.
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 was originally published on 3 February 2025 and has been updated to reflect the current position and latest developments.
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