US Citizenship for Babies Born Through Surrogacy: What Foreign Intended Parents Need to Know Now

If you are planning a surrogacy journey in the United States, or already have one underway, you may have seen the recent headlines about changes to American birthright citizenship.

Perhaps your surrogate is already pregnant. Perhaps you have embryos ready and are about to sign with an agency. Or perhaps you are still comparing countries and wondering whether the United States remains a suitable destination for your family.

Whatever stage you are at, I understand why these developments might make you nervous.

Until recently, many international intended parents planning a US surrogacy journey could reasonably expect that, once their baby was born, they would obtain the child's American birth certificate, apply for a US passport, and travel home together. The legal and administrative steps were not necessarily simple, but there was an established process.

New executive orders issued in August 2026, followed by court proceedings and passport guidance in September, have introduced uncertainty into part of that process.

The most important distinction to understand is this: your child's right to US citizenship and the government's willingness to issue documents recognizing that citizenship are not necessarily the same question.

The latest developments do not mean that commercial surrogacy has suddenly become illegal in the United States. They do not automatically invalidate your surrogacy agreement or your legal parentage arrangements. Nor has a court established that every baby born through surrogacy to foreign intended parents can be denied citizenship.

However, there are legitimate concerns about how federal agencies may process citizenship documentation, especially when neither intended parent is an American citizen.

In this article, I will explain what changed, what remains unresolved, how the proposed passport requirements could affect your family, and what I believe every international intended parent should discuss with their US legal team.

Can babies born through surrogacy in the US still receive American citizenship?

The starting point is the Fourteenth Amendment to the US Constitution.

Under its Citizenship Clause, people born in the United States and subject to its jurisdiction are US citizens at birth. There are limited exceptions, traditionally including certain children of foreign diplomats.

This principle is commonly called birthright citizenship.

For international intended parents, it has historically been an important part of planning a US surrogacy journey. A child born in the United States would generally acquire American citizenship at birth, regardless of whether their intended parents were American citizens themselves.

On June 30, 2026, the US Supreme Court issued an important decision in Trump v. Barbara.

The case concerned an earlier executive order attempting to restrict birthright citizenship for children born in the United States to parents who were unlawfully or temporarily present in the country.

The Supreme Court ruled that those children are citizens at birth under the Fourteenth Amendment. The ruling reaffirmed constitutional protection for birthright citizenship but did not establish an exception specifically for children born through surrogacy.

So why are intended parents concerned?

Because the federal government subsequently issued a different executive order addressing additional categories, including commercial surrogacy arrangements.

That order raises a separate question: Can federal agencies refuse to issue documents recognizing citizenship to a US-born child because of the circumstances of the surrogacy arrangement?

The answer remains legally contested.

Citizenship, legal parentage, and a passport are three different things

Before going further, I want to explain something that can easily get lost in discussions about American citizenship.

When your baby is born through surrogacy, there are several legal and administrative matters that need to be addressed.

Citizenship determines whether your child is legally recognized as a national of a particular country. A child may acquire citizenship automatically under applicable law, without first receiving a passport.

Legal parentage determines who the child's legally recognized parents are. In a US surrogacy arrangement, this is generally established through the relevant state's legal procedures, which may involve a pre-birth or post-birth parentage order.

A passport is an official travel document that establishes identity and nationality for international travel.

These processes are connected, but they are not interchangeable.

For example, a court in California may recognize you and your partner as your child's legal parents. Your child's birth certificate may then name both of you.

That establishes important facts about your family, but it does not necessarily resolve every question a federal passport authority may examine.

Similarly, a child may have a valid legal claim to US citizenship while the federal government questions whether to issue documentation recognizing that status.

For parents waiting to bring a newborn home, that distinction is not merely technical.

It may determine how long the family needs to remain in the United States after the birth.

What changed in August and September of 2026?

To understand the current situation, we need to look at three developments: the August executive orders, the September court injunction, and the State Department's passport guidance.

August 6: A new executive order specifically mentions commercial surrogacy

On August 6, 2026, President Donald Trump signed Executive Order 14418, Continuing to Protect the Meaning and Value of American Citizenship.

The order directs federal agencies not to issue documents recognizing US citizenship in certain circumstances where neither parent is a US citizen.

One of those circumstances concerns commercial transactions intended to obtain or access birthright citizenship.

Importantly, the order explicitly refers to parents entering into a commercial transaction with a surrogate who is present in the United States to give birth.

This is the provision that has caused concern among international intended parents and their legal advisers.

Commercial gestational surrogacy is an established family-building pathway in several US states. Intended parents may compensate a gestational carrier under a legally structured agreement, often involving independent lawyers, medical professionals, screening procedures, and court-established parentage.

Nevertheless, the wording of the new federal order creates uncertainty about whether some otherwise lawful surrogacy arrangements could lead to difficulties obtaining federal citizenship documentation.

There is also an important unresolved interpretive question.

The order refers to a commercial transaction connected with obtaining citizenship, while specifically including a transaction with a surrogate who gives birth in the United States.

Does the government intend to apply this provision broadly to compensated surrogacy arrangements involving foreign intended parents? Or will additional conditions need to be established concerning the purpose of the arrangement?

The wording raises concerns, but the full scope of its application has not been definitively resolved by the courts.

What this means for you: If neither intended parent is a US citizen and your surrogacy arrangement involves compensation, your attorney should examine the potential application of EO 14418 to your specific case.

You should not assume the order is irrelevant simply because your surrogacy agreement complies with state law.

Equally, you should not assume that your baby will automatically be refused a passport.

What do the new passport questions mean for intended parents?

For international families, the proposed passport review process may be the most significant practical development.

Normally, a child born in the United States applies for a first US passport using Form DS-11.

Because the applicant is a minor, their parents or legal guardians generally participate in the application and provide the required identity, citizenship, and parental documentation.

In a surrogacy arrangement, families may also need to establish their legal relationship to the child through relevant parentage documents.

The proposed September guidance introduces an additional issue: whether the circumstances of the child's birth fall within EO 14418.

What information could passport officials examine?

According to the proposed State Department plan, officials would review the information already provided through Form DS-11 and the supporting documentation.

This includes parental citizenship information and relevant government records.

Where neither parent is a US citizen, the plan calls for each parent to provide an attestation under penalty of perjury to help determine whether conditions identified in the executive order apply.

An attestation is a formal declaration that the information provided is true.

The reference to penalty of perjury matters because it means the declaration carries legal consequences if someone knowingly provides false information.

For intended parents, questions concerning the circumstances of their child's birth could therefore become part of the federal passport review.

A legally compensated surrogacy arrangement may be relevant to that review because commercial transactions with surrogates are expressly mentioned in the executive order.

Does this mean you must disclose that your child was born through surrogacy?

You should be prepared to provide truthful and complete information whenever a passport application or accompanying declaration requires it.

Your attorney should explain precisely what the current forms ask, how those questions apply to your circumstances, and which documents you must submit.

There is an important difference between accurately answering a question and independently trying to interpret complicated legal terminology.

For example, if you are your child's legally recognized parent under a state court order, you may reasonably identify yourself as their parent. But you should not assume that every federal question using parental terminology necessarily has the same meaning as your state parentage documents.

That is something your lawyer should clarify.

Do not omit requested information, conceal the surrogacy arrangement, or make statements you cannot support.

Even if the underlying surrogacy agreement is lawful, an inaccurate sworn declaration can create a separate legal problem.

Could your baby's passport be delayed or refused?

Potentially, yes.

If federal officials determine that an application falls within a restriction they are implementing, the family could face additional scrutiny, requests for information, delays, or a refusal.

However, a possible refusal is not the same as a confirmed refusal in every commercial surrogacy case.

The scope of EO 14418 remains legally contested, and the State Department's proposed implementation procedures are subject to legal developments.

It is therefore essential to distinguish what the government has proposed, what it has actually implemented, and what the courts currently allow.

From a planning perspective, though, even the possibility of additional scrutiny deserves attention.

Imagine your baby is due in December. You have booked accommodation for four weeks after the expected delivery date and arranged return flights based on your understanding of the usual passport process.

If a passport application requires additional review or legal intervention, four weeks may no longer be a realistic assumption.

This is why I would encourage families to treat travel flexibility as part of their legal preparation, not something to consider only after the baby arrives.

Could the new birth tourism rules affect intended parents traveling to the US?

There is another executive order from August 6 that international parents should understand.

Executive Order 14419, Ending Birth Tourism, concerns travel to the United States for the purpose of giving birth and obtaining citizenship for a child.

It is separate from EO 14418.

The birth tourism executive order directs increased attention toward travel and visa-related practices associated with birth tourism.

However, a typical international gestational surrogacy journey has an important factual difference.

The person giving birth is usually a gestational carrier who already lives in the United States. The foreign intended parents travel to attend the birth, establish their parental responsibilities, and bring their child home.

They are not necessarily entering the country to give birth themselves.

That distinction may be legally important, but I would not recommend relying on it without obtaining appropriate immigration advice.

The order does not expressly establish a surrogacy-specific rule for non-pregnant intended parents. Questions about entry, admissibility, and the purpose of travel may still be assessed individually.

A visa also does not guarantee admission into the United States.

Before traveling, ask an immigration attorney which visa category is appropriate, how you should accurately describe the purpose of your visit, and what documents you should carry.

Your travel explanation should be clear, truthful, and consistent with your actual plans.

If you are traveling to be present for your child's birth through surrogacy, that is the circumstance your legal advisers need to help you address.

What should intended parents do before their baby is born?

When legal rules are uncertain, it is tempting to look for a single reassuring answer.

Unfortunately, there may not be one that applies to every family.

What you can do is make sure the practical questions have been addressed before you are standing in a hospital holding your newborn.

Whether you are just starting your journey or approaching your due date, I would focus on the following areas.

1. Review the citizenship and passport process with your US lawyer

Ask your attorney to walk you through the complete process that will follow your child's birth.

Not simply which documents you will receive, but who obtains them, when they can be requested, and what happens if something is delayed.

You should understand how your legal team expects to obtain your child's parentage order, birth certificate, and passport.

Ask whether EO 14418 may affect the application and whether the September court injunction provides protection in your circumstances.

Most importantly, find out whether your attorney has reviewed the federal citizenship developments or is relying on the process that was routinely followed before August 2026.

An established surrogacy practice may have handled hundreds of parentage orders successfully. That experience is valuable, but it does not automatically mean the practice specializes in federal immigration and nationality disputes.

There is nothing unusual about needing more than one lawyer.

2. Understand your parentage order and birth certificate timeline

Some parents assume that the hospital will issue a birth certificate immediately and that the passport application can follow a day or two later.

In reality, the timing may depend on the state, court procedures, vital records processing, and the specific legal arrangements.

A pre-birth parentage order may streamline some steps, but it does not necessarily mean the birth certificate will be available immediately.

A post-birth order may involve additional procedures.

Ask your legal team when the relevant documents are expected, which agency issues them, and what happens if the information needs to be corrected.

If you are an international family, you should also ask whether your home country requires a particular form of birth certificate, authentication, translation, or additional recognition of parentage.

This can become especially important if you need to obtain a passport from your home country instead of, or alongside, a US passport.

3. Make a realistic plan for passport delays

I would be cautious about making non-refundable travel commitments based on the shortest possible processing timeline.

Your baby's due date is already an estimate. The delivery may happen earlier or later than expected, and medical circumstances can change your schedule.

Now there is a further consideration: the possibility that citizenship documentation could require additional review.

Ask your attorney about current passport processing procedures, whether any expedited options are available for your circumstances, and what steps can be taken if the application is delayed.

You should also consider practical arrangements.

Could you extend your accommodation if necessary? Do you have sufficient funds for additional weeks in the United States? If one parent needs to return to work, what would that mean for the other parent and the baby?

These may sound like ordinary travel questions, but they are much easier to address before the birth than during a documentation problem.

4. Investigate whether your child can obtain another passport

This is a discussion I would encourage international intended parents to have well before their surrogate's due date.

Your child may be entitled to citizenship through one or both intended parents, depending on the nationality laws of the relevant country.

However, citizenship eligibility and the ability to obtain a passport are not necessarily the same.

Some countries recognize citizenship by descent relatively straightforwardly. Others impose additional requirements, particularly where the child is born through surrogacy abroad.

There may be questions about genetic parentage, recognition of the foreign birth certificate, the validity of a US parentage order, or whether a separate legal procedure is required.

For example, two intended parents from different countries may have different nationality transmission rules. A child may qualify for citizenship through one parent but not the other.

A single intended parent may face different documentary requirements from a married couple.

And in countries where surrogacy is restricted or prohibited, recognition of the intended parents' legal relationship to the child may be especially complicated.

The possibility of obtaining a second nationality is therefore worth investigating, but it should not be treated as an automatic solution.

Ask a qualified lawyer in your home country whether your child would be eligible for citizenship, what evidence would be required, which authorities must recognize your parentage, and how long a passport or emergency travel document could realistically take.

Ideally, your home-country lawyer and US lawyer should communicate directly.

You do not want to discover after the birth that each lawyer assumed the other had addressed the issue.

5. Keep your legal and travel documents organized

Throughout your surrogacy journey, maintain accessible copies of important records.

Depending on your circumstances, these might include your surrogacy agreement, court orders, correspondence with your attorneys, relevant medical and hospital information, identity documents, and evidence relating to your travel plans.

Your lawyer may also recommend carrying documents explaining your relationship to the pregnancy and your plans while you are in the United States.

The exact requirements vary. You should not assume that every document must be presented at every appointment.

The purpose of preparing these materials is not to overwhelm officials with paperwork, but to ensure that you have the information needed to answer legitimate questions accurately.

If you are working with an agency, ask who is responsible for maintaining these records and ensuring that you receive the necessary copies.

A good agency may coordinate appointments and help with administrative steps, but you should still know which legal responsibilities belong to your independent attorney.

6. Agree on a contingency plan before the birth

This is one of the most important conversations to have.

Ask your legal team to explain what happens if the expected documentation process does not proceed normally.

Who will contact the passport authority? Who will assess the reason for a delay or refusal? Who will coordinate with your home-country consulate?

If an administrative or legal challenge becomes necessary, who will manage it?

Does your surrogacy agreement or agency package include support for extended stays or additional legal coordination? If not, how would those costs be handled?

I would also ask your lawyers to identify the point at which they would recommend changing course.

For example, if a passport application is delayed, how long would they ordinarily wait before taking further action? What would justify contacting a specialist? At what stage should an alternative nationality application be pursued?

There may be no universal answer, but having a plan is far better than trying to assemble one while caring for a newborn in another country.

Should foreign intended parents reconsider surrogacy in the United States?

This is probably the question many families are asking but hesitate to say aloud.

The United States remains a major destination for international surrogacy, with experienced fertility clinics, established professional services, and state-level legal frameworks that can provide important protections for intended parents and surrogates.

The August executive orders do not abolish those state-level surrogacy arrangements.

If you are comparing destinations, understanding the difference between commercial and altruistic surrogacy may also help explain why payment structures and legal protections vary internationally.

However, the 2026 citizenship developments introduce a federal issue that families should no longer treat as routine.

That does not mean everyone planning a US journey should cancel.

Nor does it mean that everyone already in the process should continue without reviewing their legal position.

The right decision depends on your family's circumstances, the stage of your journey, the state in which your child will be born, your nationality, and the legal advice available to you.

A family whose surrogate is due to deliver next month faces different practical decisions from a family that has not yet signed an agreement.

If you are already expecting a baby, your immediate priority may be ensuring that you have a coordinated documentation and travel plan.

If you are still choosing a destination, you have more opportunity to compare the legal processes, costs, timelines, and uncertainties before committing.

For either group, I would encourage a thorough review of what your program actually provides.

If the agency promises to handle all documentation, what does that mean? Are federal citizenship questions included? Is home-country nationality advice part of the service? Who takes responsibility if the original travel plan cannot be followed?

These are reasonable questions, particularly given the investment and responsibilities involved.

One lesson I consistently emphasize in international surrogacy is that a destination should never be evaluated solely on the basis of its medical program or the price quoted by an agency.

The complete journey includes establishing parentage, securing your child's legal documentation, and returning home together.

All of those steps deserve attention before you begin.

Moving forward with a clearer plan

If there is one thing I would like international intended parents to take away from these developments, it is that you need to look beyond the question of whether surrogacy is legally available in your chosen US state.

You also need to understand what happens after your child is born.

Who will be recognized as the legal parents? What documents will your baby need? How will citizenship be established or documented? What happens if an application takes longer than expected? And who will help you navigate the process if something does not go according to plan?

These questions have always been relevant to international surrogacy. The developments of August and September 2026 have made them more urgent.

I would not want families to make decisions based on frightening headlines, but I would equally caution against reassurance that ignores unresolved legal questions.

The best approach is to get accurate, up-to-date legal advice, understand where uncertainty exists, and make sure everyone involved in your journey knows their responsibilities.

As an independent surrogacy consultant, my role is not to replace your lawyer or make legal determinations about your child's citizenship. It is to help you understand your options, evaluate the information you receive, identify questions that may have been overlooked, and approach an international surrogacy journey with a clearer understanding of what is involved.

If you are planning surrogacy in the United States or already have a journey underway, you can book a free 30-minute discovery call with me to discuss your circumstances, the questions you should be raising, and how to approach the next stage of your journey.

You deserve to make informed decisions about your family, with a plan that considers not only how your baby will be born, but also how you will bring your baby home.

Disclaimer: This article provides general information about legal and administrative developments as reviewed on October 15, 2026. It is not legal advice. Citizenship, immigration, parentage, and passport requirements depend on individual circumstances and may change as litigation and government policies develop. Intended parents should consult qualified US surrogacy and immigration lawyers, together with appropriate legal advisers in their home country, before making legal or travel decisions.