Executive Orders on birthright citizenship: guide for UK intended parents undertaking surrogacy in the USA

The USA is the most popular destination for UK parents entering into surrogacy arrangements overseas. Surrogacy law in the USA is determined at the State level, and most States in the USA are considered to be surrogacy-friendly. While expensive, it’s generally considered to be the safest and most ethical destination for international surrogacy due to legal protections for those involved, quality of medical care and rigorous screening of surrogate candidates.

In January 2025, President Trump signed an Executive Order which sought to restrict so-called “birth-right” citizenship, so that children born in the USA who did not have a parent who was a US citizen or a lawful permanent resident (Green Card holder) would not be considered a US citizen. The January 2025 Executive Order never came into force: litigation was commenced almost immediately challenging its lawfulness and it was ultimately found by a majority of the Justices of the Supreme Court to have been unconstitutional.

On 6 August 2026, President Trump signed two Executive Orders (the Orders) – “Ending Birth Tourism” and “Continuing to Protect the Meaning and Value of Citizenship”.

How do these impact international parents undertaking surrogacy in the USA?

The Orders state that it is the policy of the current Administration that no executive department or agency shall issue documents recognising United Citizenship to a number of categories of people. In our context, it expressly includes “when the parent(s) engage in a commercial transaction with a surrogate present in the United States (or a territory of the United States) to give birth.

In simple terms: the current Administration has directed federal departments to not issue a US passport for a child born through commercial surrogacy where neither of the intended parents are US citizens.

The Orders also seek to “end birth tourism” by preventing the use of non-immigrant visas (which would include visitor visas or ESTAs) where the purpose of entry into the United States is to give birth. Intended parents in a surrogacy arrangement do not enter the US for the purpose of giving birth, but it is not yet clear whether this will be interpreted to include intended parents in a surrogacy arrangement.

The full impact of these Orders is not yet clear and there remain significant questions.  Their validity will likely be challenged in the US courts and further guidance is expected from the US federal government on the application.

Practical guidance for UK intended parents undertaking US surrogacy

This is a very recent development, and the true impact will remain unclear for some time. The Chair of the Section of Family Law, American Bar Association has, in conjunction with US immigration counsel, law professors, leadership of the Academy of Adoption and Assisted Reproductive Technology Attorneys issued the following brief guidance:

1. Clients must continue to be completely truthful in all visa, ESTA, consular and entry matters. The new Order may result in increased scrutiny or denial of admission for intended parents travelling to the USA in connection with a surrogacy arrangement. Attempting to characterise the purpose of travel inaccurately could create substantially greater immigration consequences. 
2. Clients with pregnancies already in progress should develop contingency plans now. This should include identifying an alternate person in the US who could temporarily care for the child if the intended parents are unable to enter the US. 
3. Clients should prepare for possible delays in obtaining a US passport for their child post-birth and maintain flexibility in their travel plans.
4. For clients who do not yet have a pregnancy in progress, lawyers should evaluate matters that can be reasonably be paused, particularly new international matches, contracts in progress and embryo transfers until there is additional information regarding implementation and enforcement of the Executive Orders or a court order limiting or enjoining enforcement.

Recommendations for UK parents undertaking US surrogacy

1. It is advisable to navigate these developments with professional legal support in the US, UK and any other country where you may have citizenship. In some cases, specialist immigration advice (which may not fall within your fertility lawyer’s specialism) may be required.
2. British nationality law can be complex, particularly in international surrogacy arrangements. Whether or not a child born through overseas surrogacy will be British will depend on a number of factors including the marital status of your surrogate and the citizenship of the intended parent(s). Outcomes can and do vary depending on the specifics of your circumstances and it is important to take advice on your individual case to establish whether your child will be born British automatically.
3. If a child is automatically British, it will be possible to apply for a British passport. This can still be a lengthy process and will usually require providing greater evidence and information than a first application for a British passport would ordinarily entail.
4. If a child is not British at birth in most cases it will be possible to register the baby as British provided at least one of the intended parents is British. This process does involve an application to the Home Office (for which there is a fee of just over £1000 per child). It can also be a lengthy process, which can take several months. However, there have already been contingency discussions with policy makers in the relevant departments and it is likely that if the US does not issue passports for surrogacy-born babies in the US to British intended parents, there will be an expedited process introduced. We do not yet know how long this “expedited” process is likely to take.
5. If either intended parent holds another citizenship, advice should be taken about the feasibility and timescales of securing a passport for the child from that country.
6. We do not yet know whether non-US citizen intended parents will encounter difficulties at the border when entering the US connected to the surrogacy arrangement. It is possible that there will be increased levels of scrutiny at the border. It is important that you are completely honest about your reasons for travelling to the USA and your purpose of travel. Inaccurate or misleading answers to these questions could cause greater problems. Your US attorneys may not be specialists in US immigration law, and they may refer you to US immigration counsel.
7. Consider whether you have any trusted friends or family who reside in the USA who may be able to temporarily care for your child in the event of difficulties entering the USA. Discuss these with your US attorneys and your surrogacy agency. For several reasons, most would advise against your surrogate temporarily caring for the child.
8. If you are waiting to be matched with a surrogate, or have been matched but have not yet achieved a pregnancy, you should speak with your surrogacy agency and US surrogacy lawyers about next steps. You may be advised to put matters on hold until the position becomes clearer. This will not be a decision taken lightly but one that will be made to safeguard the interests of your future child, surrogate and yourselves.

If you have questions or concerns about surrogacy in the USA, or any other surrogacy issue, please contact Family partner Colin Rogerson.