This briefing was first published on 1.7.25 and last updated on 30.6.26.
The US Supreme Court has today blocked the US President from ending birthright citizenship for babies born in the US to foreign parents. This is good news for parents through surrogacy who, although not the target of the President’s policy, could have been significantly affected.
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 approach, 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 makes it work so smoothly. It means that they can get a US passport for their child quickly and easily after the birth, a passport which enables entry to the UK and many other countries.
Almost all British parents with children born through surrogacy in the US currently apply for their child’s US passport to travel home initially, and then seek a UK passport at a later stage.
What has been happening with birthright citizenship?
Immediately after taking office in January 2025, President Trump signed an Executive Order to abolish birthright citizenship. The Executive Order said that children born in the US to parents who were in the US illegally or as visitors would not be born American. This was not aimed at surrogacy, but could have impacted it since so many intended parents who have children through surrogacy in the US are not US citizens/ lawful permanent residents. It risked children no longer being able to travel home using a US passport, and instead having to rely on travel documents from their home country. For some, including UK parents, that would just mean a longer stay overseas before being able to come home. But for those from countries which are unfriendly to surrogacy, it could have been more deeply problematic, potentially leaving children stranded overseas indefinitely and possibly stateless.
The Executive Order was immediately challenged in the US courts as being unconstitutional. Birthright citizenship comes from the 14th amendment to the US Constitution, so it should not be within the President’s power to amend with just a stroke of his pen. In February 2025, several federal court judges made nationwide injunctions preventing the interim implementation of the Executive Order while its legality was determined. Then on 27 June 2025 the US Supreme Court overturned the nationwide injunctions, saying that the judges who made them had overreached their authority. However, the position shifted again on 10 July 2025, with a New Hampshire judge making a fresh nationwide injunction which complied with the Supreme Court’s concerns and so was enforceable. This has stopped the Executive Order being implemented to date, while we have been waiting to see what the Supreme Court had to say about its constitutionality.
On 30 June 2026, the US Supreme Court announced its 6-3 decision that the President’s Executive Order on birthright citizenship was indeed unconstitutional. This means that it has been struck out, and the President cannot stop children born in the US from having American nationality at birth because their parents are foreigners.
In practice, for surrogacy, it means the longstanding practice of parents getting US passports for their babies quickly and simply after the birth in order to bring them home will continue with certainty.
Can I also get a UK passport for my surrogate baby?
Yes. If either intended parent is British then (other than in some very narrow circumstances) it will be possible to get a UK passport for your surrogate child.
Most parents wait until after they have obtained a parental order from the family court (which typically takes 9-12 months after the birth). At this stage, a UK passport application is usually very straightforward with no need to send detailed documentation about the surrogacy or consent from the surrogate. That is because a parental order makes the intended parents the child’s legal parents for all UK law purposes and, if either is British, confers British nationality on the child automatically.
It is also possible to apply for a British passport separately to the parental order (and earlier) if needed, for example if you are not eligible to seek a parental order or if you travel frequently and want your child to have a British passport as soon as possible. Here the application process is more complex. 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 automatically, you will need a discretionary grant of British nationality from the Home Office. You will need to provide full and careful documentation to the Passport Office to confirm your child’s eligibility for a UK passport, and obtain consent from your surrogate. We have been working closely with the Home Office for some time to try and simplify and streamline this process for parents through surrogacy.
We also have decades of experience applying for UK passports and British nationality for surrogacy children (as well as parental orders) so can advise you on the best overall strategy for how to bring your baby home to the UK and when and how to apply for your child’s first UK passport.
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