If the Supreme Court Ruled on Birthright Citizenship Today, What Would the USCIS do? An Analysis of the USCIS Guidance on Birthright Citizenship and Surrogacy

1. Introduction 

President Trump’s Executive Order 14160 – Protecting the Meaning and Value of American Citizenship, is expected to be reviewed by the U.S. Supreme Court. It proposes a significant reinterpretation of birthright citizenship under the Fourteenth Amendment. Set to be decided in the summer of 2026, if upheld by the U.S. Supreme Court, the Order would limit automatic citizenship at birth for certain children born in the United States based on the immigration status of their parents at the time of birth.  

In anticipation of possible implementation, U.S. Citizenship and Immigration Services (USCIS) issued an Implementation Plan intended to explain how the Executive Order would be operationalized and how the government intends to apply it. While the Executive Order and the USCIS guidance address several traditional family and immigration scenarios, neither document expressly discusses gestational surrogacy.  

Once both documents are analyzed, a critical issue comes to surface: neither the Executive Order nor the USCIS guidance clearly address surrogacy at all. 

2. What does the Executive Order Actually Addresses? 

The Executive Order limits automatic U.S. citizenship for certain children born in the United States based on the immigration status of their parents. In doing so, it refers to the “mother” and “father” of the child as “immediate biological progenitors” and focuses on their legal or immigration status at the time of the child’s birth. 

The Executive Order makes a two-step inquiry: 1) the mother must not be “unlawfully present” in the U.S. or her presence must not be “lawful but temporary” and 2) the father must be a U.S. citizen or lawful permanent resident. Only if both steps are met then the child born in the U.S. can be considered a citizen.  

The Executive Order seems to leave out of its consideration children born to surrogacy and the legal concepts of intended parents, legal parentage established by court order, donors, same-sex couples and single fathers as there’s no mention of these concepts. 

3. What the USCIS Implementation Plan Says and Forgets to Say 

The USCIS Implementation Plan mirrors the Executive Order in many ways. It references the two-step system previously mentioned by the Executive Order, but it also it describes the meaning of the terms: “Unlawfully Present” and “Presence that is lawful but temporary”. However, unlike the Executive Order’s two-step system, the USCIS Implementation Plan provides a list of categories that contains those who may be considered “lawful but temporary”, and another list of categories that are “lawful and not temporary”.   

Like the Executive Order, the USCIS Implementation Plan uses the terms “mother” and “father” and ties citizenship outcomes to parental immigration status.  However, the USCIS guidance fails to define who qualifies as a mother, leaving silent whether “mother” means the legal parent, genetic parent, or the person who gives birth. Thus, there is no answer how the policy applies in surrogacy arrangements, how same-sex male couples or single fathers are treated and whether the legal status of the egg donors or gestational carriers are relevant. 

4. Why Surrogacy Creates a Legal Gap? 

The USCIS Implementation Plan does little to expand upon the Executive Order, by giving no explanation or defining who can be a “mother” and/or “father”. The Executive Order assumes a traditional birth model in which the woman who gives birth is also the child’s legal and biological parent.  

We know that in gestational surrogacy, the woman who gives birth, the gestational carrier, is not the legal mother of the child. The legal parents are the intended parents, whose parentage is usually established by court order before or shortly after birth. Also, the egg or sperm donor, if any, while genetically related has no legal parentage status that links her to the child. However, the USCIS Implementation Plan says nothing to address these concept. 

Therefore, we are left with the following possibilities: 1) If “mother” means that the person who gives birth, the policy would look to the surrogate’s immigration status, however, the Implementation Plan never says this explicitly; 2) If “mother” means the legal parent, the policy would look to the intended mother, nevertheless, the plan never says this; and 3) If “mother” means the biological progenitor, the egg donor might be relevant, then again, the USCIS Implementation Plan does not address donors either. 

Because none of these situations are clarified and no clear rule is provided, the USCIS Implementation Plan cannot be applied to surrogacy arrangements at all.  

5. Application to Common Surrogacy Scenarios 

a. International Heterosexual Intended Parents 

In a typical scenario, an international heterosexual couple enters a gestational surrogacy arrangement in the United States. The intended mother may or may not be the egg provider, and the surrogate is a U.S. citizen. 

Under the Executive Order, the analysis would turn on the status of the biological mother (the egg provider) at the time of birth. If that individual was not present in the United States, the Executive Order’s triggering conditions may not be met. 

The USCIS Implementation Plan, however, does not explain how to apply its categories in this scenario. It does not state whether the surrogate’s status should be examined, whether the egg donor’s status is relevant, or whether the legal parents’ status matters. 

Because the USCIS guidance does not address this situation, it provides no textual basis to conclude that the child would be excluded from citizenship. 

b. Same-Sex Male Couples and Single Fathers 

The gap in the USCIS guidance is even more apparent for same-sex male couples or single fathers using surrogacy. 

In these cases: There is no female legal parent, the egg donor may be anonymous and have no legal relationship to the child and the surrogate has no parental rights or obligations. 

The USCIS guidance presupposes the existence of a “mother” but does not explain how to proceed when no woman is both a parent and a genetic progenitor. The guidance does not address whether an egg donor should be considered the “mother,” whether the surrogate’s status is relevant, or whether the absence of a qualifying “mother” means the framework cannot be applied. 

This silence creates a strong argument that such cases fall outside the scope of the USCIS Implementation Plan. 

c. Does the Citizenship of a Donor Matter? 

The Executive Order references “immediate biological progenitors,” suggesting that genetic relationships may be relevant at least at the Executive Order level. The USCIS Implementation Plan, however, makes no mention of donors and does not incorporate genetic parentage into its categories. 

Because the USCIS guidance does not address donors at all, it neither authorizes nor prohibits considering a donor’s citizenship. This further underscores that the USCIS guidance does not contemplate surrogacy arrangements and leaves critical questions unanswered. 

8. Conclusion 

Executive Order 14160 and the USCIS Implementation Plan represent a significant shift in the interpretation of birthright citizenship. However, both documents were drafted without apparent consideration of gestational surrogacy, a legally established and widely used family-building method in the United States. 

The USCIS Implementation Plan does not define “mother” and does not address how its categories apply when the person who gives birth is not a legal or genetic parent. 

For international intended parents, whether heterosexual couples, same-sex male couples, or single fathers, this silence is critical. It supports the argument that the Executive Order and USCIS guidance do not reach surrogacy cases and therefore cannot be used as a basis to deny U.S. citizenship to children born through such arrangements. 

Until USCIS provides explicit guidance addressing surrogacy, intended parents have a strong legal argument that their children remain entitled to U.S. citizenship at birth. Because of that, children born in the United States through surrogacy to international intended parents occupy a legal space that the current guidance does not clearly reach and therefore, the USCIS Implementation Plan should not be used to deny U.S. citizenship to their children. 

For more information on how the Trump presidency could affect IVF and surrogacy, please visit our related blog post. 

Tsong Law Group specializes in assisted reproduction law across the United States, with attorneys licensed in California, New York, Washington, Arizona, Oklahoma, and Illinois. We help international intended parents secure pre-birth orders, navigate citizenship documentation, and protect their parental rights from the outset. If you are an international intended parent planning surrogacy in the United States, contact our team to schedule a consultation and ensure your family’s legal protection. 

This article is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship with the reader.