Trump’s New Order Threatens Foreign Surrogacy Babies

Two new executive orders issued by President Trump have created serious uncertainty for foreign intended parents pursuing surrogacy in the United States. For Australians, the concern is immediate and practical: will intended parents be able to travel to the United States for the birth of their child, and will that child be recognised as a United States citizen?

The orders appear designed to restrict birthright citizenship and prevent what the administration calls “birth tourism”. One order expressly refers to commercial transactions involving a surrogate in the United States. That language places international surrogacy squarely in the firing line.

This is not a small policy adjustment. If enforced as written, these measures could be a wrecking ball to the United States surrogacy industry, particularly for intended parents from Australia and other countries who have relied on US birthright citizenship as part of the pathway home with their child.

Birthright citizenship has deep constitutional roots

Birthright citizenship has long been part of American constitutional practice. Following the Civil War, the Fourteenth Amendment established the principle that people born in the United States are citizens, subject to very limited exceptions.

Historically, those exceptions have generally concerned children born to foreign diplomats or, in an earlier historical context, children born in territory occupied by a foreign power. The shameful Dred Scott decision, which denied citizenship to an enslaved man before the Civil War, was one of the notorious departures from the principle that citizenship should not be denied on racial grounds.

The Fourteenth Amendment was enacted in the aftermath of that period and has traditionally been understood to provide citizenship by virtue of birth in the United States. The Supreme Court upheld that principle in the nineteenth century.

During President Trump’s first term, he foreshadowed executive action on birthright citizenship, but such an order did not eventuate at that time. Early in his current term, however, an executive order sought to deny citizenship to some children born in the United States unless a genetic mother or genetic father was a US citizen.

That first order was promptly challenged. Courts granted injunctions on the basis that it conflicted with the established constitutional understanding of birthright citizenship. The issue then made its way to the Supreme Court, which delivered a 6 to 3 ruling in June. Yet the legal and political fight did not end there.

A new order directly targets commercial surrogacy arrangements

The first of the latest executive orders is titled Continuing to Protect the Meaning and Value of American Citizenship. Its stated policy is that US government agencies should not issue or accept documents recognising US citizenship in specified circumstances where neither parent is a US citizen.

The order refers to several categories, including children of foreign government employees, foreign nationals with particular immunities, and people said to have participated in transactions intended to obtain birthright citizenship.

Most concerningly for intended parents, the order identifies a commercial transaction involving a surrogate present in the United States or a US territory for the purpose of giving birth.

In plain terms, the executive order appears to say that where foreign intended parents enter into a commercial US surrogacy arrangement, their child may not be given documents recognising US citizenship. It attempts to treat a surrogacy arrangement as a transaction to obtain citizenship.

That proposition is profoundly troubling. For many intended parents, the arrangement is not about seeking an immigration advantage. It is about trying to have a child after infertility, medical trauma, genetic risk, the absence of a uterus, or other circumstances that make pregnancy impossible or unsafe.

Children should not become collateral damage in a political argument about migration policy.

The “birth tourism” order creates a second barrier

The second order, titled Ending Birth Tourism, is also deeply significant. It targets foreign nationals entering the United States on non-immigrant visas for the purpose of giving birth on American soil. It also seeks to prevent people from facilitating that entry.

The order alleges that birth tourism operators use misleading advertising, make promises about citizenship and public benefits, and encourage clients to misrepresent the purpose or duration of their travel to consular and border officials.

It directs relevant officials to take steps such as:

• Preventing entry into the United States for people considered to be engaging in birth tourism.
• Refusing visas or travel authorisations.
• Revoking visas or travel authorisations.
• Potentially permanently barring a person who enters, or attempts to enter, for the purpose of birth tourism.

Surrogacy is not necessarily identical to what is commonly understood as birth tourism. A surrogate is carrying the pregnancy, not the intended parent. Nevertheless, the two executive orders must be read together. One directly singles out commercial surrogacy transactions, while the other creates broad powers to restrict entry related to a birth in the United States.

That combination may create a practical nightmare for foreign intended parents. They could face difficulty travelling to the United States shortly before or after the birth, despite needing to be there to care for their child and complete the steps required to travel home.

What this could mean for Australian intended parents

For Australians considering US surrogacy, the risk profile has plainly increased. The central question is no longer merely where a surrogacy arrangement can be lawfully undertaken. It is also whether intended parents will be admitted to the United States and whether their child’s citizenship position will be challenged.

Australians should obtain individual legal advice before making decisions about a US arrangement, travel plans, visa applications, or post-birth documentation. US immigration law, citizenship law, state surrogacy law and Australian family and citizenship processes can all intersect.

It is particularly important to understand that Australian laws regarding overseas commercial surrogacy differ depending on the intended parents’ state or territory of residence. A state by state guide to commercial surrogacy can help identify some of those legal issues before any overseas plan is put into place.

For intended parents already in a US surrogacy journey, the immediate priority is likely to be bringing their child home safely and lawfully. Where a child is eligible for Australian citizenship by descent, the familiar pathway has been to apply for Australian citizenship overseas and then obtain an Australian passport once citizenship is granted.

This was the process used during the COVID period, when border restrictions made travel exceptionally difficult. In many cases, the process took approximately six weeks, although timeframes can vary and should never be assumed. Current requirements should be checked directly with the Department of Home Affairs information on Australian citizenship by descent.

Subject to the facts of the individual case, an Australian child can then return to Australia as an Australian citizen. That may remain the practical route home even if the child’s US citizenship is disputed or delayed.

The unresolved problem: getting to the child

The most pressing concern may not ultimately be the Australian citizenship application. It may be whether intended parents can enter the United States to be with their child after the birth.

A newborn needs care. Intended parents need to be there. Surrogates need clear support and respectful arrangements. Any policy that prevents parents from travelling to their child risks creating an intolerable human situation.

There may be legal challenges in the United States to both executive orders. Australian intended parents may also be able to participate in appropriate US litigation, depending on the circumstances and legal advice received there.

However, court proceedings take time. A clear final outcome could be around 18 months away, depending on injunction applications, appeals and the approach taken by the courts. Recent Supreme Court decisions have also raised difficult questions about when lower-court judges can make injunctions that operate broadly across the country, rather than simply protecting the people directly involved in a case.

That procedural issue matters. A narrow injunction may protect some intended parents but leave others exposed. A broader injunction could provide certainty across the United States. Until the courts determine the scope and validity of these orders, uncertainty remains.

Careful planning is now essential

US surrogacy has long offered a well-developed legal framework in many states, but the new executive orders introduce a federal citizenship and immigration risk that cannot be ignored. Intended parents should not make decisions based on rumours, social media commentary or outdated assumptions about birthright citizenship.

They need a plan that considers the whole journey, including the surrogacy arrangement, US legal advice, Australian legal advice, immigration status, citizenship evidence, travel documents and contingencies if travel is disrupted. A sensible overseas arrangement must always include a surrogacy back-up plan, particularly when rules may change with little warning.

For families already affected, there is every reason to act promptly, calmly and with experienced assistance. The stakes are too high for uncertainty to be left unmanaged.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy lawyers and an accredited family law specialist. He has spent decades helping intended parents navigate the legal, practical and emotional complexity of surrogacy in Australia and overseas. Stephen Page and the team at Page Provan are committed to doing everything possible to help clients build their families and bring their children home safely.