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 24.7.25. It will be kept updated as there is more news.

The US government is trying to implement a policy to end birthright citizenship for babies born in the US to foreign parents, and the last few weeks have seen a rollercoaster of twists and turns.

What has happened so far on birthright citizenship?

Almost immediately after taking office, President Trump signed an Executive Order seeking to remove the longstanding US law that any child born in the US is automatically a US citizen irrespective of their parentage. The Executive Order said that, going forward, children born in the US to parents who were either in the US illegally or were only visitors without permanent residence would not be born American citizens.

This was almost immediately challenged in the courts as being unconstitutional (given that birthright citizenship comes from the 14th amendment to the Constitution) and that legal challenge remains outstanding with no date as yet as to when the Supreme Court may decide it – some have said October, others some time in 2026.

In the meantime, in February, several federal court judges made interim nationwide injunctions blocking the administration from implementing the Executive Order. This meant nothing would change immediately on the ground.

Then on 27 June 2025 the position got turned on its head, with the US Supreme Court overturning the nationwide injunctions, saying that the judges who made them had overreached their authority. That meant that the US government could begin implementing the Executive Order in the interim period before the Supreme Court had ruled on its merits. After a 30 day grace period (which ended on 26 July), the Supreme court said that the US government could start refusing to recognise children born in the US to foreign parents as US citizens.

However, the position then changed again on 10 July, with a New Hampshire judge making a fresh nationwide injunction based on a new class action suit. The judge in that case, acknowledging the Supreme Court’s earlier decision on the validity of nationwide injunctions, said that the new injunction would not take effect for 7 days to give the Trump administration the chance to appeal. However, the government did not appeal within 7 days (and as of 24 July has still not yet done so), which means that the new nationwide injunction is now in effect.

The current position is therefore that the Executive Order cannot now immediately be implemented. However, given all the twists and turns to date, it is possible this could change again, for example if the government does appeal the new nationwide injunction, or if the Supreme Court ultimately rules that it is constitutional.

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.

Could US passports stop being issued to surrogacy babies?

We don’t yet know. The litigation around the injunctions is complex and fast-changing. As things stand, a nationwide injunction is in place stopping the implementation of the Executive Order so US passports are still being issued to babies born in the US. It is possible that the Supreme Court could overturn that injunction again, as it did before to change the short term position. It is also possible the Supreme Court could ultimately rule the Executive Order to be constitutional, in which case this would be a permanent change (though legal commentators don’t think that likely).

Even if the Executive Order is brought into force, it is not clear how it would apply in cases of assisted reproduction which involve intended parents, donors and/or surrogates (given its definition of ‘parents’ as ‘male/female biological progenitors’). 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.

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.

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 babies due imminently:

If US passports do remain easily available 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.

However, there is now also a clear contingency plan available to apply for a UK passport if you need one. This is a more complex application, but it is completely independent of US law and so will remain available in the months and years ahead no matter what happens in US politics.

If you want to be ready to make a UK passport application if you need to, it is sensible to plan ahead of the birth to gather the information, documents and referee consents you will need, and to make sure your stay in the US is long enough to accommodate the likely timescale.

We are working with a number of clients at the moment who are doing this preparation work just in case, and we would suggest if you wish to do the same to reach out to us before you get to 20 weeks of pregnancy. Please get in touch at hello@ngalaw.co.uk. The Home Office have also 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.