Surrogacy and Birthright Citizenship: What Intended Parents Need to Know in 2026

A baby born through gestational surrogacy on United States soil is a U.S. citizen. Full stop. The 14th Amendment guarantees it. Over 125 years of Supreme Court precedent confirms it. And as of April 2026, no executive action has changed it.

But that last sentence comes with an asterisk right now. Executive Order 14160, signed in January 2025, attempted to narrow birthright citizenship for children born to non-citizen parents. The Supreme Court heard oral arguments on April 1, 2026 — and a ruling is expected within weeks.

For intended parents considering surrogacy — and especially for international families traveling to the U.S. for this journey — the legal picture demands attention. Not panic. Attention.

Gestational surrogacy is one of the most medically sophisticated ways a family can be built — and one of the most human. This guide breaks down what the law actually says, what the courts have decided, what’s still in play, and what you can do right now to protect your family.

The 14th Amendment: Why U.S.-Born Surrogacy Babies Are Citizens

The legal foundation is the Citizenship Clause of the 14th Amendment, ratified in 1868. It reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Congress codified this in 8 U.S.C. § 1401(a). The Supreme Court cemented it in United States v. Wong Kim Ark (1898), ruling that a child born in San Francisco to Chinese nationals was a U.S. citizen at birth.

Only three narrow exceptions exist. Children born to foreign diplomats with full immunity. Children born during hostile military occupation of U.S. territory. And an exception for certain Native American tribes that Congress eliminated entirely in 1924.

For surrogacy, the analysis is simple when the birth occurs on American soil. The U.S. State Department’s own Foreign Affairs Manual states it explicitly: children born in the United States acquire citizenship at birth regardless of the use of ART or surrogacy.

The child’s citizenship does not depend on the intended parents’ nationality. It doesn’t depend on the gestational carrier’s immigration status. It doesn’t depend on donor gametes. A baby born through surrogacy in San Diego to intended parents from London receives the same constitutional protection as any other child born on American soil.

This principle is called jus soli — Latin for “right of the soil.” It stands in contrast to jus sanguinis (“right of blood”), which governs citizenship for children born outside the U.S. That distinction matters enormously when evaluating the political threats and legal developments covered below.

Executive Order 14160 and the Supreme Court Case in Play

On January 20, 2025, President Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” The order directed federal agencies to deny citizenship documentation to certain children born in the U.S.

The targets: children born to mothers who were unlawfully present (when the father was not a citizen or lawful permanent resident), and children born to mothers on temporary visas (tourist, student, or work) under the same paternal conditions.

The order does not specifically mention surrogacy. But its language creates real ambiguity for assisted reproduction. It defines “mother” as the “immediate female biological progenitor” and “father” as the “immediate male biological progenitor” — without ever defining “progenitor.”

In a gestational surrogacy arrangement, the carrier, the egg donor, and the intended mother may all be different people. If “progenitor” means genetic contributor, the surrogate’s citizenship status becomes irrelevant. If it means birth mother, a U.S. citizen carrier could shield the child’s citizenship regardless of who the intended parents are.

The White House has not clarified how the order applies to ART scenarios.

The Courts Responded Fast

Three days after signing, a federal judge in Seattle issued a temporary restraining order, calling the executive order “blatantly unconstitutional.” By mid-February 2025, four federal judges had issued nationwide preliminary injunctions. Every circuit court that reviewed the case denied the administration’s emergency requests to lift those blocks.

The case reached the Supreme Court through Trump v. Barbara. On December 5, 2025, the Court agreed to hear the case on its merits. Oral arguments on April 1, 2026 — with the President himself attending, an unprecedented act for a sitting president.

Court observers reported that a majority of justices appeared skeptical of the government’s position. Justices Kavanaugh and Roberts pressed the Solicitor General on the textual basis for narrowing 125 years of settled interpretation. A decision is expected by late June or early July 2026.

What the Birthright Citizenship Debate Means for Surrogacy Families

The executive order’s primary targets are children of undocumented immigrants and temporary visa holders — not surrogacy families. But the ripple effects touch assisted reproduction in ways lawmakers may not have anticipated.

Legal scholars from The Conversation have noted that restricting birthright citizenship could disproportionately affect LGBTQ+ couples, single parents using donor gametes, and lower-income families — groups that rely more heavily on surrogacy and ART.

The ambiguity around “progenitor” creates a specific gap. Consider a same-sex male couple using an egg donor and a gestational surrogate. Neither intended parent is the “female biological progenitor.” If the executive order were enforced, which woman qualifies as the “mother” for the order’s purposes — the egg donor or the surrogate?

Nobody has answered that question officially. And that uncertainty is exactly why surrogacy attorneys across the country recommend that international intended parents work with agencies in states that offer the strongest legal frameworks — states where surrogacy laws explicitly protect all family structures.

Landmark Court Cases That Changed Surrogacy Citizenship Law

The citizenship question looks very different when the surrogacy birth happens outside the United States. Here, citizenship depends on blood — jus sanguinis — and the relevant law is the Immigration and Nationality Act (INA), written in 1952, decades before modern IVF existed.

For years, the State Department applied a devastating interpretation. It classified children of same-sex married couples born via surrogacy abroad as born “out of wedlock” — requiring proof of a “blood relationship” to the American parent. Three landmark cases destroyed that policy.

Dvash-Banks v. Pompeo (2018–2020)

Andrew Dvash-Banks (a U.S.-Canadian dual citizen) and Elad Dvash-Banks (an Israeli citizen) had twin sons via surrogacy in Canada in 2016. Each father contributed sperm for one twin using the same egg donor. The State Department granted citizenship only to the twin genetically linked to Andrew — the American father.

In February 2019, a federal judge in California ruled that the INA does not condition citizenship on a biological relationship to both married parents. The Ninth Circuit unanimously affirmed in October 2020. Both twins were recognized as U.S. citizens.

Kiviti v. Pompeo (2019–2020)

Roee and Adiel Kiviti — both naturalized U.S. citizens born in Israel — had a daughter via surrogacy in Canada using Adiel’s sperm. Because only Adiel was genetically connected, the State Department denied their daughter’s passport application.

A federal court in Maryland ruled that the citizenship provision for children of two U.S. citizen parents does not contain a biological-relationship requirement. The court pointed out that Congress used the phrase “blood relationship” elsewhere in the INA — and deliberately omitted it from this section. The State Department withdrew its appeal in October 2020.

Mize-Gregg v. Pompeo (2020)

Derek Mize (a U.S. citizen from Mississippi) and Jonathan Gregg (a dual U.S./UK citizen) had a daughter through surrogacy in England using Gregg’s sperm. Same pattern: the State Department treated the child as born out of wedlock. A federal court in Georgia ordered citizenship recognition, finding the biological-relationship requirement was not supported by the statute’s text.

The Policy Reversal

Three defeats in three different federal circuits compelled a major reversal. On May 18, 2021, the State Department announced that children born abroad to married parents — at least one of whom is a U.S. citizen — will be recognized as citizens from birth if they have a genetic or gestational tie to at least one parent. Not necessarily the American parent.

USCIS followed with Policy Alert PA-2021-17 in August 2021, updating its guidance to match. For surrogacy families, this was a seismic shift.

Have questions about how citizenship law affects your surrogacy plans? Our legal coordinators work alongside board-certified OB/GYNs to align every step. Schedule a free consultation to discuss your options.

International Intended Parents: Bringing Your Baby Home

For foreign nationals pursuing surrogacy in the United States, the child’s American citizenship is typically the easy part. Born on U.S. soil, the baby receives a birth certificate and qualifies for a U.S. passport.

The harder question is how to secure recognition of parentage — and sometimes citizenship — in your home country. Every nation handles this differently, and the absence of any binding international framework means families must plan bilateral legal strategies well in advance. Understanding international surrogacy laws is a good starting point.

Country-by-Country Realities

United Kingdom: Under the Human Fertilisation and Embryology Act 2008, the surrogate is the legal mother. Foreign birth certificates carry no automatic recognition. Intended parents must apply for a Parental Order within six months of birth — a process that takes 6–12 months through the High Court. The child enters the UK on a visitor visa while the order is processed.

Germany: Surrogacy is illegal under the Embryo Protection Act, and the birth mother is always the legal mother under § 1591 of the Civil Code. However, a genetic intended father can acknowledge paternity through a German consulate during pregnancy. The non-genetic parent must complete a stepchild adoption — taking six to eight months.

France: A landmark October 2024 ruling by the Cour de cassation now allows recognition of foreign parentage orders through “exequatur” — without requiring adoption. This was a dramatic shift for a country where surrogacy contracts are still legally void.

Israel: Expanded surrogacy access in January 2022 to include same-sex couples and single men. Israeli parents register the child at the consulate with DNA testing typically required. One of the more streamlined processes.

Australia: The Australian Law Reform Commission is conducting a major inquiry into surrogacy laws, with a final report due July 2026. Commercial surrogacy abroad is a criminal offense in some Australian states and territories — creating a complicated legal landscape for parents who pursue U.S. surrogacy.

Canada: Recognizes jus soli for children born within its borders and allows citizenship transmission to children born abroad through surrogacy — even without a genetic link. The process takes approximately one year.

Japan: Follows a strict birth-mother-is-legal-mother rule. The Supreme Court declined to recognize a U.S. pre-birth order in 2007. Japanese intended parents typically obtain the child’s U.S. passport and pursue adoption proceedings in Japan.

The Statelessness Risk Is Real

When a child is born through surrogacy and neither the birth country nor the parents’ home country recognizes the child as a citizen, the result is statelessness. The child belongs to no country.

This is not theoretical. The Baby Manji case in 2008 left a child born through Indian surrogacy in legal limbo for months after the Japanese intended parents divorced mid-pregnancy. More recently, families caught between restrictive home-country laws and complicated foreign surrogacy arrangements have spent years in courts trying to establish their children’s legal identity.

The Hague Conference on Private Law, which had been working since 2011 on an international surrogacy and parentage framework, abandoned the project entirely at its March 2026 meeting. No international treaty is coming.

This is another reason why U.S.-based surrogacy carries a structural advantage. Jus soli guarantees the child at least one citizenship at birth, regardless of the parents’ situation. That baseline eliminates the worst-case statelessness scenario that haunts international arrangements.

New Legislation Targeting Foreign Nationals and U.S. Surrogacy

Beyond the birthright citizenship debate, a separate legislative front is opening — and intended parents from certain countries need to pay attention.

The SAFE KIDS Act, introduced by Senator Rick Scott in November 2025 with a House companion from Representative Blake Moore in January 2026, would void commercial surrogacy agreements between U.S. surrogates and citizens of designated “foreign countries of concern” — China, Russia, Iran, and North Korea. Brokers who facilitate such agreements would face misdemeanor penalties.

The bill exempts married couples where at least one spouse is a U.S. citizen or lawful permanent resident.

The legislation was prompted partly by the case of Chinese billionaire Xu Bo, who reportedly fathered over 100 children through U.S. surrogates — a story that generated enormous media coverage. A Los Angeles family court judge denied his parentage petition in 2023, an extraordinarily rare outcome.

Florida advanced a separate bill (HB 905) in March 2026 that would ban surrogacy contracts where any party is a citizen or resident of a designated foreign adversary nation. Critics argue this could affect American citizens with dual nationality or connections to those countries.

These bills focus on the contractual side — voiding agreements and penalizing brokers — rather than attempting to strip citizenship from children already born on U.S. soil. But for international intended parents from affected countries, the legal landscape is shifting quickly.

State Surrogacy Laws and How They Affect Citizenship Documentation

There is no federal surrogacy statute. State law governs every arrangement. And the choice of state directly controls how quickly parentage is established — which in turn controls the birth certificate, the Social Security number, and the passport application.

The distinction between pre-birth orders and post-birth orders matters enormously here.

With a pre-birth order, the intended parents appear on the original birth certificate from the moment of birth. The SSN and passport applications proceed without delay. With a post-birth order, the surrogate may initially appear on the birth certificate, and an amended certificate is issued after the court order comes through.

Surrogacy attorneys uniformly advise: do not apply for a Social Security number at the hospital if a post-birth order is pending. The automated system will link the SSN to the surrogate — creating bureaucratic problems that are extremely difficult to reverse.

States With the Strongest Protections

California remains the gold standard. Family Code §§ 7960–7962 authorize pre-birth orders for all intended parents regardless of marital status, sexual orientation, genetic connection, or residency. The intended parents appear on the original birth certificate. The surrogate’s name never appears.

Combined with landmark case law — Johnson v. Calvert (1993) and Buzzanca v. Buzzanca (1998) — California offers the most predictable legal environment for surrogacy in the country.

Nevada provides similarly robust protections with pre-birth orders available to all family structures and no residency requirement. Connecticut’s Parentage Act, effective January 2022, codified existing case law directing vital records to honor pre-birth orders even without biological relationship.

Illinois expanded access in December 2025 through the Equality for Every Family Act, which removed the prior genetic-connection requirement and broadened eligibility. Michigan, which had carried the last broad criminal ban on compensated surrogacy since 1988, repealed it in 2024. The new Assisted Reproduction and Surrogacy Parentage Act took effect April 2, 2025.

States with restrictive frameworks — Louisiana, Nebraska, Arizona — push many families toward cross-state arrangements with surrogates in surrogacy-friendly states.

What Intended Parents Should Do Right Now

The legal fundamentals remain strong. But prudent planning has always been the best defense in surrogacy law. Here’s what matters most.

Choose your state carefully. California, Nevada, Connecticut, Illinois, and Washington all offer strong pre-birth order protections. Work with an agency headquartered in one of these states — one that understands how parentage law, citizenship documentation, and medical oversight connect. Knowing how to choose a surrogacy agency starts with understanding these legal protections.

Engage legal counsel early. International intended parents should have attorneys in both the U.S. state where the birth will occur and their home country. Don’t wait until the third trimester. The best time to address citizenship and parentage documentation is before the embryo transfer, not after the birth.

Maintain a genetic link if possible. While U.S. jus soli makes genetic connection irrelevant for American citizenship, most home countries still require it for their own citizenship recognition. If you’re an international IP, having at least one intended parent contribute gametes simplifies the process in nearly every jurisdiction.

Monitor Trump v. Barbara. The Supreme Court’s decision will arrive by late June or early July 2026. If the Court upholds the executive order — which most legal observers consider unlikely based on the oral arguments — the practical implications for surrogacy families will need immediate legal analysis. Your surrogacy agency and attorney should have contingency plans ready.

Work with a physician-led agency. Medical timelines and legal deadlines collide constantly in surrogacy — and that’s where things go wrong. At Physician’s Surrogacy, our in-house OB/GYNs coordinate directly with your legal team. A business-operated agency simply can’t replicate that.

When pre-birth order filing windows depend on gestational milestones, having physicians manage both sides of that equation removes a layer of risk.

If you’re comparing agencies, ask one question most others can’t answer: who’s actually managing the medical side? Talk to our team and see the difference OB-led surrogacy makes.

Frequently Asked Questions

Julianna Nikolic

Chief Strategy Officer Julianna Nikolic leads strategic initiatives, focusing on growth, innovation, and patient-centered solutions in the reproductive sciences sector. With 26+ years of management experience and a strong entrepreneurial background, she brings deep expertise to advancing reproductive healthcare.