US surrogacy: prospective changes to birthright citizenship

The United States has long been considered the gold-standard destination for intended parents pursuing surrogacy abroad. While it comes with a significant price tag, it offers a secure, well-tested legal system that protects surrogates and intended parents alike, and, until recently, a fast, predictable route home following the birth.

This has been called into question by President Donald Trump’s latest round of executive orders. For those currently expecting a baby through surrogacy in the US, or planning a surrogacy journey, it is important to speak to a specialist adviser as soon as possible, to assess next steps.

Why US surrogacy has always been the safe choice

Under the 14th Amendment of the US Constitution, any child born on US soil is automatically recognised as a US citizen. For international intended parents, this has been a key reason to choose the US as a destination for their surrogacy journey. Babies born through surrogacy in the US are born American citizens and are entitled to a US passport from day one. This often makes the journey home a straightforward and speedy one for most British parents with their newborns, rather than waiting out the (usually) much slower British passport process.

President Trump’s re-election

President Trump placed this in jeopardy when he signed an executive order on 20 January 2025 (his first day in office) declaring that children born in the US on or after 19 February 2025 (the effective date of the order) would no longer be entitled to US citizenship, if their parents are not US citizens or lawful permanent residents.

While this order was seemingly not drafted with surrogacy in mind (it was not specifically referenced), its result would have meant children born to international intended parents via US surrogacy would not be automatically entitled to US citizenship.

Despite the president’s efforts, on 30 June 2026, the US Supreme Court declared that the order was unconstitutional.

The story, however, did not end there. On 7 August 2026, President Trump signed a second executive order targeting birthright citizenship again, and this time it references surrogacy directly. The order attempts to prevent ‘documents recognising US citizenship’ being issued to ‘parent(s) (who) engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth’.

What happens now?

As happened last time, litigation appears to be moving quickly in the US, and the courts have already been asked to step in. At this stage, no US court has determined how the actions taken on 7 August will impact intended parents undertaking international surrogacy journeys in the US, and the US government’s guidance is awaited. Whether this order meets the same fate as the first remains to be seen, but for now, whatever stage intended parents are in their surrogacy journey, it is important to put a contingency plan in place.

Here are some top tips depending on where you are in your journey:

Already expecting a baby through US surrogacy 

It is important not to rely on a US passport being issued following the birth, and to have a solid back up plan in place.

For many families, a British passport is a viable alternative. Whether this will be available, and what the process looks like, depends on several factors:

• whether either intended parent is British, and how that nationality was acquired;
• who the child’s biological parent is and what their nationality is, and if British, how that nationality was acquired; and
• whether the US surrogate is married (this is relevant to determining who is treated as the child’s legal parent under UK law).

In some cases, British nationality has to be granted before a passport application can even be made, and even straightforward citizenship applications can take months to be considered. In others, you can apply for the passport straight away but ‘overseas’ British passport applications generally take at least a few months. If the baby is automatically British and the plan is to come to the UK soon after the birth, it is important to submit the passport application at the earliest opportunity.

If an individual holds other nationalities, alternative passports or travel documents may also be an option. Depending on the nationality or nationalities available, you may need to make a visa application in advance of travelling to the UK.

Intended parents will also need to think about their immigration status in the US while any alternative documents are being applied for and obtained.

Planning a US surrogacy journey, but the surrogate is not pregnant yet 

As the implications of this second executive order are not yet clear, caution is advised. Talking to the agency and the US attorney about how they are advising clients to proceed is recommended before committing to next steps.

Put a plan in place that covers every eventuality, and make sure the surrogate fully understands the current situation and is comfortable moving forward regardless.

Getting advice at this stage, before the surrogate is pregnant, is the single best way to protect the surrogacy journey from this uncertainty.

Our surrogacy team specialises in supporting parents through exactly this kind of uncertainty, and we are already helping families work through what this latest order means for them. Our family, immigration and private client teams work together to provide a holistic approach for you, considering and advising on all eventualities and issues. Whatever stage you are at, get in touch with us today. We will give you clear, practical advice tailored to your circumstances, so you can feel confident in how to proceed.