US Surrogacy: Birthright citizenship back on the agenda for foreign intended parents

• First published 7.8.26, last updated 15.8.26

Undeterred by the recent Supreme Court ruling that his Executive Order seeking to end birthright citizenship was unconstitutional, President Trump has (on 6 August 2026) issued a new Executive Order which seeks to prevent children born in the US to foreign parents being issued with ‘documents recognising US citizenship’ (such as US passports) in certain specific circumstances. Those circumstances include ‘when the parent(s) engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth’. 

This time, the more narrowly-drafted Executive Order has therefore expressly targeted foreign parents who engage in surrogacy in the US, along with various other scenarios.

Will the new Executive Order actually come into effect this time?

We don’t yet know. The last Executive Order never came into effect because it was immediately challenged in the courts and a nationwide injunction stopped it being enforced until the Supreme Court ultimately ruled it to be unconstitutional. Legal challenges to this new Executive Order have already been lodged – by the same US organisations which won the last case – and we may well see the same pattern. We will keep this page updated with any news on US legal developments, and also keep a close eye on what happens with babies born in the coming weeks and months.

In the meantime, this is a useful US legal analysis of the current position: August 6 Executive Orders: Birthright Citizenship & Surrogacy

Why does birthright citizenship matter to US surrogacy?

Many intended parents from around the world engage in surrogacy in the US. It offers a secure legal framework and a well-established ethical pathway, with intended parents recognised as their child’s legal parents from birth.

Although parents from overseas do not typically choose the US for surrogacy in order to get US citizenship for their children, the fact their babies are born American is one of things that smooths the process. It means that parents can get a US passport for their child quickly and easily after the birth, a passport which enables visa-free entry to many countries, including the UK.

Almost all British parents with children born through surrogacy in the US to date have applied for their child’s US passport to travel home initially, and then sought a UK passport at a later stage (often after their parental order is granted by the family court).

So what does this mean for British intended parents?

If there are difficulties getting US passports for surrogate babies, the US will fall into the same category as other surrogacy destination countries which do not offer birth-country nationality, such as Ukraine and Georgia. Fortunately, there are already established processes for getting UK passports, so British parents will be able to bring their children home.

UK passports are available if either intended parent is British (other than in some very narrow circumstances involving parents who were born outside the UK and have never lived in the UK).

Parents with other nationalities may have additional options to obtain other passports which would enable entry to the UK too.

How do I apply for a UK passport for a surrogate baby and how long does it take?

British nationality law is complicated, so the specifics of what you need to do depends on which parent is British, how you got your British nationality, who is the biological parent and whether your surrogate is married. In some cases children are born British and you can apply for a UK passport directly. In others children are not born British automatically, which means you need a grant of British nationality from the Home Office to enable a UK passport to be issued (via a separate parallel application). In either case, you must provide full documentation to the Passport Office to confirm your child’s British nationality, eligibility for a UK passport, and consent from your surrogate. 

Historically, UK passport applications following US surrogacy have taken 4-12 weeks or more on the ground, but we have been engaging with the UK Home Office to see what can be done to support affected families and ensure the timescale is as short as possible, especially where parents have only a limited time to stay in the US. Our director Natalie Gamble attended a meeting with key government officials on 14 August and we are confident that, if UK passports are urgently needed, a 3-7 week timescale will be realistic in most cases, provided that the correct applications are made with all necessary information and documents.

If you are expecting a baby in the coming months and are concerned please feel free to get in touch. We have decades of experience applying for UK passports and British nationality for surrogacy children (as well as parental orders) and can advise you on the best overall strategy for how to bring your baby home to the UK and fully secure your family’s UK legal status.