Birthright citizenship: what is it and why might it impact on my surrogacy journey?

Posted: 19/03/2025

One of the key benefits of surrogacy in the USA is the ability for intended parents to return home with their baby within a few weeks of the birth. This is possible because of birthright citizenship (a right enshrined in the 14th Amendment of the US Constitution), meaning that any child born in the US will be recognised automatically as a US citizen from birth.

In a surrogacy context, this means that even if the child is British at birth, they will also be recognised as an American citizen and will be entitled to a US passport. In most cases, British parents who have conceived a child via surrogacy in the US will obtain a US passport for their child, and will then travel home using this passport, as opposed to waiting for a British passport for them (which can take significantly longer to process and be issued).

This was, however, placed in jeopardy, when on the first day in office (on 20 January 2025), President Donald Trump signed an executive order declaring that children born in the US on or after 19 February 2025 (the effective date of the order) would no longer be entitled to US citizenship, if their parents are not US citizens or lawful permanent residents. This could have a significant impact on US surrogacy arrangements, given that intended parents from the UK will not have that status. Naturally, this has caused a great deal of concern for intended parents either considering a US surrogacy journey, or those who have already embarked on one.

Having consulted colleagues in the US, and carefully considered the position, it is the family team’s view that there is no reason to panic. The executive order was not drafted with surrogacy in mind and has been suspended while various legal challenges against it are heard. It has been called ‘unconstitutional’, and the president faces significant hurdles in achieving the amendment.

US attorney and founder of The Surrogacy Law Center in California, Stephanie Caballero, explains that we must ‘keep in mind that the Constitution can only be amended through a rigorous process requiring two-thirds approval from both the House of Representatives and the Senate, as well as ratification by three-fourths of US states. Given today’s political landscape, achieving such consensus is highly improbable. In the meantime, the case will eventually make its way to the Supreme Court of the United States, and we expect that to happen next year’.

Even in circumstances where the executive order does come into effect, and it is interpreted to encompass children born through surrogacy in the US, there are alternative options for UK intended parents. As is the case in other international surrogacy destinations, intended parents may, depending on the circumstances, be able to either apply for British citizenship (if appropriate) and subsequently a British passport for their child, or for a British passport straight away. This may result in a longer than hoped stay in the US, but it is a well-trodden route in countries such as Ukraine (historically) and Georgia. In the immediate aftermath, there may well also be the option of acquiring emergency travel documents, depending on the circumstances.

Our specialist family and immigration teams are keeping a close eye on the situation as it unfolds in the US and are working closely with our assisted reproduction colleagues there to ensure we are fully up to date. If you have any worries about the recent developments in the US, and how these might impact on your individual journey, please do not hesitate to get in touch.

Return to news headlines