Possible end to Birthright citizenship: Will President Trump’s Executive Order impact international surrogacy arrangements in the US?
On President Trump’s first day back in the Presidential Office, he signed an Executive Order which would prevent the recognition of citizenship for U.S. born children where they do not have at least one parent who is an American Citizen or has permanent residency.
What Impact Does This Have on International Surrogacy?
The U.S. has been a favoured destination for international Intended Parents for decades, and with good reason. In many states there is a robust legal framework that offers the following certainties for all parties involved:
- Legal contracts which set out the responsibilities of each party, including defined payments to the surrogate.
- A clear matching process with a surrogate.
- The ability to obtain a pre-birth Order which recognises the Intended Parents as the Legal Parents of any resulting child/ren*.
- The ability to obtain a U.S. Passport quickly after the birth to enable the child to travel with the Intended Parents back to their home Country.
* This is not recognised in the UK and Intended Parents are required to obtain a Parental Order in order to obtain Legal Parent status for the child/ren.
The current position remains as it was prior to the Executive Order, meaning that a child born in the US via a surrogacy arrangement is automatically recognised as a US citizen, enabling the Intended Parents to obtain a passport for the child to return to the UK.
The Executive Order sought to prevent this automatic recognition meaning that Intended Parents would be left in a situation where they could not obtain a passport in the US, therefore impacting on their ability to travel home with their child.
This, of course, led to a lot of panic and uncertainty for Intended Parents with surrogate born children due in the immediate aftermath of the Order.
Current Position
There was an immediate backlash to the Executive Order and some commentators deemed it as a violation of the 14th Amendment to the U.S. Constitution which includes the following clause at Section 1:
“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”
Various Courts in the US took steps to injunct (stop the Order coming into force) earlier this year – meaning that it would not take effect and that automatic citizenship would still apply to any child born in the US. This then led to the intervention of the US Supreme Court.
On 27 June 2025 the US Supreme Court ruled that the Order could not be stopped unless there was a class action on behalf of a nationwide group, which could only be brought by a Federal Judge.
Over the course of the following months three Federal Judges (in Massachusetts, New Hampshire and San Francisco) issued the required class actions and on 7 August 2025, US District Judge Deboarh Boardman, Maryland, became the fourth Federal Judge to do so.
What this means is that, currently, there is still an automatic recognition of birth citizenship for all children born anywhere in the US. For international and UK Intended Parents this means that they are, currently, still able to obtain a US passport for their surrogate born child/ren which enables them to travel back to the UK.
But the position remains uncertain so it is advised that UK Intended Parents who are currently involved in, or will be embarking on surrogacy arrangements in the US consider the other options available to them to bring the child/ren back to the UK.
Immigration Options
UK immigration and nationality law around surrogacy can be highly complex. However, there are well-established options to bring children to the UK, without holding a US passport. The option(s) available to a particular child will depend on several factors, which include whether an Intended Parent, particularly the Intended Father, is a British citizen; whether an Intended Parent, again particularly the Intended Father, is genetically linked to the child, and whether the surrogate is married or unmarried.
We outline the potential options below but again wish to highlight that in order to proceed with one of the options relevant criteria will need to be satisfied.
British citizen at birth: A child born in the US through a surrogacy arrangement may acquire British citizenship at birth and be eligible to apply for a British passport from the US. These applications can take up to 6 weeks (or longer) to be processed. Once the passport has been issued, the child will be able to travel to the UK with the Intended Parents.
Register as a British citizen: If the child is not British at birth, the child may be able to register as a British citizen under a discretionary provision of the British Nationality Act 1981. If the registration application is approved, an application will need to be submitted for the child’s British passport. This is therefore a two-staged process which can take up to 6 months for the first stage and as above, up to 6 weeks (or longer) for the second stage.
This option would therefore require spending significantly more time in the US before being able to bring the child home to the UK.
Apply for permission to enter the UK: If the child does not acquire British citizenship at birth and is also not able to register as a British citizen, an application will need to be submitted to the Home Office to grant the child entry to the UK (potentially outside of the Immigration Rules). Such applications can take many weeks and potentially months to be processed depending on the circumstances. However, given the urgency of such an application and considering the best interests of the child, the Home Office may be inclined to process such applications on an expedited basis, however this cannot be guaranteed and would depend on the facts of the case.
Additionally, to leave the US, the child would need to be in possession of a valid identity document. Without a US or British passport, an application for an emergency travel document may be required to enable to the child to travel to the UK.
Conclusion
If you are an Intended Parent in the UK who is involved, or thinking of becoming involved in, a surrogacy arrangement in the US, it is strongly recommended that you obtain specialist legal advice. Here at Irwin Mitchell we have both:
- Fertility Law specialists – who can advise on the legal requirements in the UK and the process for and obtaining a Parental Order; and
- Immigration Law specialists – who can assist in ensuring that you can return to the UK as quickly as possible with your child.
