Trump’s New Executive Orders on Citizenship: What Does It Mean for Surrogacy?

Recently, the Trump administration issued two new Executive Orders which could affect surrogacy for intended parents who are not US citizens.

First, Ending Birth Tourism (“first Executive Order”). This executive order, signed August 6, 2026, directs the State Department and DHS to treat coming to the U.S. on a temporary visa in order to give birth as a misuse of that visa. It gives both agencies authority to deny visas, revoke them, bar or remove people who do this, and take action against businesses that help arrange it, with exceptions available on humanitarian or national-interest grounds. While there is rhetoric that surrogacy is birth tourism, this Executive Order does not mention surrogacy and by its wording does not cover intended parents. 

Second, Continuing to Protect the Meaning and Value of American Citizenship (“second Executive Order”). This order, also signed August 6, 2026, says federal agencies will not issue citizenship documents to, or accept state-issued citizenship documents for, a child born in the U.S. when neither parent is a citizen and one of several conditions applies: (1) a parent is a designated terrorist; a parent is an employee of a foreign government or international organization with international organization immunity; (2) the parents engaged in a commercial transaction to purchase or access birthright citizenship for the child; or (3) the birth occurred in a U.S. territory where citizenship isn't granted by statute. 

Of note, provision (2) applies (i)  when the parent(s) of the person engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth; or

(ii)  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.

This subsection (ii) would appear to affect intended parents who are not US citizens and who enter into a compensated surrogacy agreement, and have the effect of preventing them from obtaining passports and social security numbers. 

What Does This Mean for Surrogacy

Prior to these Executive Orders taking effect, children born to international parents are eligible for US passports when born in the US. These US passport were obtained for the child to return to the intended parent’s home country; they have not been used to allow an intended parent to stay in the US or migrate to the US, and international intended parents have no intention to stay in the US. 

Within 30 days, or by September 5, 2026, USCIS will issue policies that affect whether the USCIS will issue a passport to international intended parents where neither is a US citizen. First, any child born before the 30-day implementation will not be affected. 

Second, as with the original Executive Order “Protecting the Value and Meaning of American Citizenship” (“original Executive Order”) which we previously discussed at length, it is highly likely that a private lawsuit will be filed in court that will enjoin the Executive Order from taking place. Following the Supreme Court decision of Trump v. CASA, Inc., a class action must be filed to enjoin (stop) the original Executive Order from taking place. A class action is a lawsuit where one or more persons represents a class of people who are negatively affected by the lawsuit. This requires persons who actually will be harmed by the order to sue and represent the class of intended parents who are not US citizens. 

Finally, a question will be how the USCIS will know that the birth is through surrogacy. Parentage orders are issued in state courts and in most states these are confidential records. The birth certificate will not state that the birth is from a gestational surrogate so it is possible that the USCIS will not deny all parents passports. This is where the First Executive Order would broadly apply to block those intended parents who are on a temporary visa from eventually obtaining U.S. citizenship through their US-born children. However, we expect the first Executive Order is highly likely to be enjoined.

In our opinion, both Executive Orders cannot survive Constitutional challenges for the same reason the original Executive Order predictably did not survive legal challenges. The President cannot define what class of people are exempt from citizenship, the Supreme Court was clear in the case of Trump v. Barbara that the Citizenship Clause of the 14^th Amendment applies to all persons born in the US with limited exceptions expressly stated. Even if the concurring opinion of Justice Kavanagh that Congress can pass a law to define who is a foreign invader could expand who is excluded, President Trump is not signing a law defining who is a foreign invader, so direct and immediate court precedent should invalidate these Executive Orders. 

What Do You Do Now?

If you are not a US citizen and you are matched with a surrogate, should you cancel the match or delay moving forward? As the legal grounds for the Executive Orders are extremely weak after the Trump v. Barbara decision which overturned the original Executive Order, you could wait to see if lawsuits are filed and whether an injunction takes place stopping the Executive Orders. Some intended parents can also weigh the risk (a small one) that if the second Executive Order remain in effect, that they can still proceed. It is likely that intended parents in most countries can bring home their children born to surrogates, although in some countries and situations, it may be more challenging. Overall, the risk to international intended parents remains small. It is our belief that President Trump cannot determine who is a citizen or who can obtain proof of citizenship. While he may continue to issue executive orders in an attempt to stop children from becoming citizens, these orders will be struck down as long as individuals continue to challenge him in court. 

Organizations that sued Trump for the original Executive Order will be filing new lawsuits to stop the Executive Orders from taking place. The ACLU brought the Trump v. Barbara lawsuit. Please consider contacting them if you believe you will be a good class representative. 

If the second Executive Order is enjoined, it will have no legal effect. It will remain enjoined until a trial occurs. The injunction will be subject to appeal, but as long as the Supreme Court composition does not change significantly before it receives the appeal, it seems likely the Executive Order will have no effect on international surrogacy.

In the unlikely event that the second Executive Order is not enjoined and does go into effect, talk with your attorney. The federal government cannot stop state governments from issuing birth certificates and intended parents ability to be on the birth certificate will not be affected. While citizenship documents may not be available, in many countries, there will be means to travel without a passport as during the COVID-19 shutdown.

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.