Briefing: US birthright citizenship ruling and surrogacy – what do UK parents need to know?

This briefing was first published on 1.7.25 and last updated on 11.7.25. It will be kept updated as there is more news.

The US Supreme Court has possibly cleared the path for the US government to implement its policy on birthright citizenship, although the position remains uncertain. Its ruling on 27 June 2025 overturned the nationwide injunctions made by the lower courts in February, which means that the US government will potentially be permitted to go ahead with measures to change the longstanding US position that any child born in the US is automatically a US citizen irrespective of their parentage. 

However, in a further update, a New Hampshire judge made a fresh nationwide injunction on 10 July 2025 (based on a new class action suit). That injunction will not take effect for 7 days to allow the Trump administration to appeal, so it is likely to land back in the Supreme Court. We will update with further developments as to whether this injunction will hold.

What do the changes to birthright citizenship mean for parents through 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 approach, with intended parents recognised as their child’s legal parents from birth. Although foreign citizen parents do not typically engage in surrogacy in the US in order to get US citizenship for their children, the fact babies are born American (simply by virtue of being born in the US) is logistically helpful.

It means that you can get a US passport for your child quickly and easily after the birth, a passport which enables entry to the UK and many other countries. This is different to most other surrogacy destinations (few of which offer birthright citizenship) from which it can take longer to get travel documents after the birth.

Almost all British parents who have had children born through surrogacy in the US historically have used their child’s US passport to travel home initially, and then sought a UK passport after the grant of their UK parental order.

When will the changes to birthright citizenship take effect?

The Supreme Court said that the earlier nationwide injunctions would be lifted in 30 days, so US birthright citizenship could start being denied to children born in the US after 27 July 2025.  It is not clear what impact the more recent nationwide injunction made by the court in New Hampshire may have (on its face it would extend the availability of birthright citizenship in the interim before the main case is decided, but it may be shortlived if the Supreme Court repeats its ruling against nationwide injunctions).

Will US passports definitely stop being issued to surrogacy babies?

We don’t yet know. The litigation around the injunctions is complex and fast-changing. Even if the Executive Order is brought into force, it may not apply in all states. Its wording (and particularly its description of parents as ‘biological progenitors’) also does not make clear how it applies in cases of assisted reproduction which involve intended parents, donors and/or surrogates. We don’t yet know how any new rules will be applied to surrogacy cases, and it is possible that US passports may continue to be issued for surrogate babies to enable them to leave the US swiftly after the birth, which is after all what the administration wants. We are working closely with leading US surrogacy and immigration attorneys on this, and can connect you with them to advise on your options as things evolve.

We also don’t yet know how long the new policy will be in place for. The Supreme Court ruling last week, and the subsequent injunction issued in New Hampshire, only concerns the interim position and the injunctions which have so far stopped the President’s Executive Order taking effect in the short term. The ruling does not deal with the wider challenge to the Executive Order (which most legal commentators agree is likely to succeed because the Executive Order is clearly unconstitutional). The broader case is projected to be considered by the Supreme Court, possibly in October, and if the Executive Order is then ruled to be unconstitutional, birthright citizenship will be safeguarded again for all. Any changes may therefore only be temporary.

Can I get a UK passport for my surrogate baby instead if I need one?

Yes. While it may continue to be possible to get a US passport, it’s important to know what the alternative strategies are in case US passports are no longer available, or even just if the application process becomes much more difficult or uncertain.

From a UK law perspective, British parents can breath easy. If either intended parent is a British citizen then (other than in some very narrow circumstances) it will be possible to get a UK passport for your surrogate child.

The process needs to be managed carefully according to the specifics of your situation. Whether your child is born British will depend on which of you is British, how you got your British nationality, who is the biological parent and whether your surrogate is married. If your child is not born British, you can seek a grant of British nationality from the Home Office, relying on a clear policy which essentially says that British nationality will be granted if a British biological or non-biological parent is recorded on a lawful US birth certificate. Either way you will need to provide full and careful documentation to the Passport Office to confirm your child’s eligibility for a UK passport, but the process is reliable and well tested.

We have decades of experience applying for UK passports and British nationality for surrogacy children and can advise you on what to do.

How long will it take to get a UK passport for my surrogate baby?

Applications for British nationality and UK passports can take many months when there is no particular urgency, but the UK government is able to expedite applications when necessary, and we are hopeful will do so if there are significant problems getting US passports for surrogate babies in the months ahead. Such special measures have a long history, as has our involvement in winning them.

In the early months of COVID, the US government suddenly stopped issuing US passports, and we wrote to the UK Home Secretary and subsequently worked closely with the government to expedite UK travel documents applications for surrogacy babies, which at that time were issued in around two weeks.  Similarly when war broke out in Ukraine in 2022 we again worked with the government to get UK travel documents for 46 babies born to British parents – in some cases with British nationality and passports issued within hours of children being born.

This latest crisis is of perhaps less obvious practical urgency, but we have seen it coming for some time so are already ahead in terms of preparation. In February, we wrote to the Home Secretary to alert the government to the risk of birthright citizenship no longer being available to surrogacy babies born in the US and were pleased to be invited to work with a Home Office working group to try and streamline the process for securing UK travel documents for surrogate babies generally. That work is ongoing and we have been in touch with the Home Office today, who understand the new urgency.

While we don’t yet know how this new streamlined process will work, please do be reassured that we are working the problem and will continue to do all we can for the families and children we support.

So what do I need to do? Immediate actions for British parents pursuing US surrogacy

A great deal depends on where you are in the process. We know things will evolve and the best strategy will become clearer in the weeks and months ahead so our advice for now is:

For parents with a baby due before 27 July:

The changes should not affect you. For most parents, the best strategy will continue to be to apply for a US passport for your baby to get home, then apply for your UK parental order and after that seek a UK passport for your child. If you would like help with navigating this process please do get in touch.

If you have a baby due between 27 July and the end of the year:

If you are already working with us we will reach out to you (if we haven’t already done so) to help you decide whether to apply for a US or UK passport for your child (or both) and plan for how long you will need to stay in the US. We can also liaise with your US attorney to make sure all options are being considered in the round.

Otherwise, please get in touch at hello@ngalaw.co.uk. The Home Office have asked us to give information about the applications they should expect so they can provide assistance, and we can add you to the list we are putting together to make sure you will get the help you need.

If you have a baby due after 2025 or are just in the planning stages of surrogacy:

Please feel free to reach out if you need any advice or support, but for now we advise that you wait for the situation on the ground to become clearer. Please be reassured that, whatever happens, we will be able to help you get your baby home. The worst case scenario is only a longer stay in the US than you may have anticipated, and we will be able to help you plan to minimise that if it is necessary. There are many advantages to surrogacy in the US which, even if the travel strategy changes, will continue to mean it is the safest and most reliable destination for international surrogacy.