What The Supreme Court's Decision in Trump v. CASA Means for International Intended Parents in Surrogacy

This content is provided for general informational purposes only and should not be considered legal advice. Reading this article does not establish an attorney-client relationship.

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Update

On July 10, 2025, the ACLU's class action filed in New Hampshire district court which covers the proposed class of babies being born was certified by the court, and a new injunction has issued covering the class with a seven day delay for the government to appeal the inunction to the First Circuit Court of Appeal. If the First Circuit court allows the injunction to remain in effect, then the Executive Order will not take effect until the courts have ruled on the merits. The class of persons covered by the injunction is: All current and future persons who are born on or after February 20, 2025, where (1) that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, as well as the parents (including expectant parents) of those persons.

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Introduction

Today in a much-watched decision, the U.S. Supreme Court decided Trump v. CASA, Inc., a collection of cases which had paused via national preliminary injunctions President Trump’s Executive Order 14160 Protecting the Meaning and Value of American Citizenship which limited birthright citizenship to children born from citizens or permanent residents. 

What is the Supreme Court’s ruling?

The Court considered the limited question whether the Executive Order can be paused nationwide. The ruling does not decide the Executive Order on the merits, whether it violates the Fourteenth Amendment. A discussion on how the Order appears unconstitutional can be found in our blog.

In a surprising and shocking 6-3 decision, the Supreme Court held that federal courts may only grant injunctive relief to the parties to a court action. The Court observed the proper means to affect other parties is a class action governed by Federal Rule of Civil Procedure 23 which requires a showing of numerosity, common questions of law or fact, typicality and representative parties who will adequately protect the interest of the class. 

The Court granted the Trump administration relief of the preliminary injunction to the extent the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.

In other words, the Court held that the Trump administration can start putting the birthright citizenship Executive Order into effect in 30 days but the courts can issue new injunctions to cover the individual plaintiffs suing the Executive Order. 

How does this affect international intended parents using a surrogate in the U.S.?

First, the ruling will not affect the issuance of birth certificates or affect any present or future surrogacy parentage action. Intended parents who reside abroad can still work with surrogates in the United States, still have judgments issued by courts naming them as the parents on birth certificates issued in every state. The ruling will only potentially affect the issuance of documents that reflect US citizenship.

Second, the ruling will not take effect until July 27, 2025. So if a child is born in the US prior to July 27, regardless of the intended parents’ citizenship or residence, if the child is born anywhere in the US, the child will be entitled to a passport. It may also take longer than 30 days for the government to issue direction to agencies on the Executive Order. Once federal agencies have that direction, we will have more information on whether there will be any other solutions for obtaining passports for children born to surrogates, such as whether the surrogate’s citizenship or residency can be used or parentage judgment language could be used to be an exception.

Which states are challenging the Executive Order?

In the meantime, lower courts must reissue their injunctions in compliance with the Supreme Court's decision. The precise impact of this requirement remains unclear. Currently, 22 states have sued the Trump administration over birthright citizenship.

It is likely that the federal court in State of Washington v. Trump, being heard in Seattle, Washington, will issue a new injunction covering Washington, Arizona, Illinois, and Oregon. Meanwhile, a US district court in Massachusetts hearing State of New Jersey v. Trump could issue preliminary injunctions for the other 18 states in the lawsuit. The map below shows the states that are actively challenging the Executive Order.

Will my child still get U.S. citizenship?

If new injunctions are granted in these 22 states and Washington DC, then any child born in one of them will continue to automatically receive the privileges of U.S. citizenship beyond July 27, 2025.

There may be other remedies available such as filing an individual or class action lawsuit to determine that the Executive Order does not apply to individuals such as intended parents. [Note that the ACLU has already filed a class action lawsuit on behalf of a class of unborn children affected by the Executive Order.] Our previous blog article discusses some other possibilities to leave the US immediately with a child who does not have a passport such as using the laissez passer. Rest assured that there will likely be ways to bring a child to their home country safely. 

Is the Executive Order constitutional?

The courts have still not determined if the Executive Order is unconstitutional. We still believe that the Executive Order violates the 14th amendment and the lower courts have unanimously indicated they will find the Executive Order unconstitutional, although the Supreme Court will have final say. Until the Supreme Court rules, the Order may be unconstitutional in some states depending on the location of the lawsuits. If the Order is found unconstitutional by the Supreme Court, then all children born in the US, regardless of when they were born, will be entitled to US passports and other privileges of citizenship. 

Quick checklist for international intended parents (2025 births)

☐ Baby’s expected due date is before July 27, 2025.

☐ Surrogate resides in one of the 22 states challenging the Executive Order.

☐ Speak with your counsel after the courts have issued new preliminary injunctions. 

☐ Consult with counsel in home country in familiar with alternative travel documents like laissez-passer

Final thoughts

We will continue to work closely with our international intended parents, as well as surrogates supporting them, to monitor legal developments and identify practical solutions for any passport-related issues that arise.

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