As President Donald J. Trump promised, he issued a slew of executive orders on his first day in office on January 20, 2025. The one that potentially affects surrogacy is his executive order to restrict birthright citizenship which is titled “Protecting the Meaning and Value of American Citizenship.”
The Executive Order creates a policy that no department or agency will issue documents recognizing United States citizenship or accept state documents that would recognize United States citizenship to persons (1) where either the person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or permanent resident at the time of birth, or (2) where the person’s mother’s presence at the time of birth in the United States was lawful but temporary, and the person’s father was not a United States citizen or permanent resident at the time of the person’s birth.
This Order will apply to persons born 30 days from January 20, 2025 and shall not be construed to affect other individuals from obtaining documentation of their United States Citizenship.
What Does This Mean for Surrogacy with International Intended Parents?
The U.S. has long been a global leader in surrogacy due to its favorable legal framework, the laws of several states permitting surrogacy, and the ease of obtaining legal documents such as birth certificates for children born to American surrogates.
The Executive Order does not directly mention surrogacy. In fact, it specifically does not affect the citizenship of anyone who does not fall under the two specific situations. The first group of people excluded from citizenship are those where the mother is unlawfully present and the father is not a U.S. citizen or green card holder. This would not apply to international intended parents as neither would enter the U.S. unlawfully. The second category requires two things, both that the mother’s presence is temporary and the father is not a U.S. citizen or permanent resident. It is unclear whether this applies to U.S. surrogate births in all situations.
The Reasoning of Trump’s Challenge on Birthright Citizenship and Why It is Unlikely to Succeed
The Executive Order quotes the Fourteenth Amendment of the U.S. Constitution which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Trump interprets this Amendment to exclude birth citizenship to persons who are not “subject to the jurisdiction” of the United States and argues anyone who is not a permanent resident or citizen is not subject to the jurisdiction of the United States. However, a historic Supreme Court decision established birthright citizenship in 1898. United States v. Wong Kim Ark, 169 U.S. 649 (1898) found that a Chinese man born in San Francisco to parents who were at the time both Chinese citizens permanently living in the United States, could not be denied citizenship even though a law at the time, the Chinese Exclusion Act, prevented Chinese from becoming U.S. citizens. The Trump administration reads this case as requiring permanent residence in the United States, when the legal status of permanent residency did not exist until the Alien Registration Act was passed in 1940.
Thus, legal experts predict that any attempt to alter birthright citizenship will likely face lengthy court battles. The possibility of the order ever taking effect in thirty days is unlikely.
The procedure is likely to be as follows: (1) In the thirty-day period before this Executive Order takes effect, it will be challenged by immigrant rights and civil liberties groups in the United States in federal court. In fact, as of the time of this writing, eighteen states, the ACLU and other groups have already filed a lawsuit. (2) The plaintiffs will request the judge hearing the to issue an injunction, or a stop, to enforcement of the order nationwide until they have heard the arguments and make a decision. An injunction of the Executive Order is likely under the standard which requires (i) a likelihood of success on the merits; (ii) a likelihood of irreparable harm; and a (iii) balance of equities and hardships in favor of the moving party; and (iv) the preliminary injunction is in the public interest. (3) It will then take months before a trial takes place. We expect that the trial will find the Executive Order is unconstitutional based on the precedent of United States v. Wong Kim Ark. (4) The injunction or denial of the injunction will then be appealed to a federal appeals court, and eventually the Supreme Court. Each appeal on the injunction could take about a month, Should the injunction stay in place, the case will take more than two years to be resolved, first with a lower court decision after a trial, then after the federal appeals court rules, and finally, with the Supreme Court ruling.
Even in the worst case scenario where the executive order is not enjoined and the USCIS denies citizenship documents to international intended parents, there are alternative ways to establish the child’s citizenship. These include applying for citizenship in one’s home country or applying for special statuses that allow travel without a passport. While these processes may require additional steps, they are manageable with the help of experienced legal professionals.
Opportunities for Growth and Collaboration
The surrogacy industry in the U.S. is resilient and resourceful. In fact, surrogacy continues to expand in the U.S., as Michigan will join states in which surrogacy is legal this year.
While restrictive policies could prompt some families to explore options in other countries, the U.S. remains a preferred destination for its exceptional legal clarity, the shorter wait times, and modern healthcare. By engaging with policymakers and advocating for inclusive family-building policies, industry professionals can help maintain the U.S.’s position as a global leader in surrogacy.
Moreover, while international intended parents may fear chaos will erupt during the Trump administration restricts immigration, as a surrogacy law firm that experienced the COVID-19 outbreak, we have successfully navigated a crisis that caused the shutdown of courts, passport agencies, and a travel ban for intended parents with a positive outcome for all of our clients.
Advocacy groups and agencies are prepared for whatever the next Trump administration will bring up, working proactively to ensure that families' rights and needs are protected in the future.
Conclusion: Preparing for a Bright Future
The Executive Order was not written with surrogacy situations in mind and there are arguments that the Executive Order does not apply to international intended parents using surrogacy.
In addition, the legal foundations of birthright citizenship, supported by the U.S. Constitution, are likely to survive this Executive Order. Note that the situation is subject to change, and we will update the blog when there is new information or guidance.
The attorneys of Tsong Law Group have over 30 years of combined legal experience and are licensed in six states. If you choose Tsong Law Group, we will provide assistance with documents to help with an exemption from Trump’s Executive Order and have solutions for any legal issues that arise, so you can focus on your family building.
Updates:
On January 23, 2025, Senior U.S. District Judge John Coughenour in Seattle granted a temporary injunction blocking the Executive Order nationwide from coming into effect for at least 14 days while the case is argued. This is the lawsuit by various states including Washington.
On February 5, 2025, U.S. District Judge Deborah Boardman in Maryland granted a preliminary injunction on the Executive Order nationwide, stating it "contradicts 125 year-old binding Supreme Court precedent and runs counter to the country's 250 years history of citizenship by birth." A preliminary injunction is longer than a temporary injunction and stays in effect until the case decided by the court, or it may be appealed to the Court of Appeals.
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