Trump's bid to end birthright citizenship: the effect on UK parents through surrogacy

The new US administration is seeking to end birthright citizenship for babies born in the USA to foreign-citizen parents. Shortly after taking office, President Trump signed an Executive Order saying that only children born in the USA to parents who were US citizens or lawful permanent residents would be automatic US citizens. It is something which is looming large over foreign parents expecting babies through US surrogacy in the coming months, anxious about whether they will still be able to get a US passport for their child in order to return as promptly as possible to their home country.

The way things are rolling out in the USA is undeniably complex. The Executive Order was almost immediately challenged as being unconstitutional, triggering intricate legal proceedings which have included states and individuals challenging the Executive Order, class action suits, federal injunctions and various appeals. This is all ongoing, in a twisting turning rollercoaster which seems to have a new update every day.

At the time of writing, a new nationwide injunction is again in place preventing the US government from implementing the Executive Order in the short term – which means birthright citizenship remains the law of the land for now. However, we await the adjudication of the US Supreme Court both on the legality of the latest injunction (the Supreme Court having overturned the previous nationwide injunction in late June) and on the constitutionality of the Executive Order as a whole. Most legal commentators believe that the Executive Order will not ultimately survive the legal challenge, but for the time being the position remains uncertain.

The target of the US government's policy is not surrogacy, but parents from the UK and many other countries building their families through US surrogacy have always been helped by birthright citizenship in getting their newborn children home. With a US passport they can take their baby home easily within a week or two of the birth, and then resolve the legal issues around parentage and nationality at home at their leisure. Few foreign parents through surrogacy are seeking US citizenship for their child – they just want to get home as quickly as possible. For British parents, it has meant entry to the UK initially with a US passport, applying for their parental order (which takes six to 12 months) and then (very straightforwardly) applying for a UK passport for their child.

However, if needed, it is – and always has been – possible for parents to get a UK passport instead for a child born overseas through surrogacy if one or both of the parents is British. Eligibility is more complex than just producing a birth certificate or verifying a genetic connection – the complexity of UK surrogacy law means that the Passport Office needs evidence of whether the surrogate is married, who the biological father is, how he originally got his British nationality (whether through birth, descent or naturalisation) and whether the surrogate consents.

In some cases, the child is not born a British citizen automatically (for example if the surrogate is married or the British parent isn't the biological father) and a separate application needs to be made to the Home Office for a grant of British nationality before the child can be issued with a UK passport. This is now a well-established process, but it takes time and knowledge of how to navigate successfully.

The assault on US birthright citizenship is understandably proving stressful for parents mid-surrogacy who are having to adjust their plans and prepare for a UK passport application they weren't expecting to have to make – and potentially a longer than expected stay in the USA. With a rollercoaster of US litigation ongoing, what the landscape will look like when their child is born is unclear. While everyone seems to be predicting that the Executive Order will ultimately be invalidated, taking us back to business as usual, at least British parents can breathe easy that there is a solid contingency plan and they can instead seek a UK passport for their child if they need one.

In the past, the UK government has also been helpful with putting in place emergency measures to help ensure surrogacy babies aren't stranded overseas for an extended period (for example during COVID and then upon the outbreak of the war in Ukraine – see BioNews 1137) and they are aware of the current issues in the USA. There are certainly some opportunities to streamline the process of getting UK travel documents, and it makes sense to do so given that – if there are problems getting US passports – the numbers of UK passport applications for surrogacy babies born overseas will likely more than double. At NGA Law we have a long history of working with the government on international surrogacy challenges, and we are continuing to do so.

The USA has always been the UK's most popular international surrogacy destination, despite being the most expensive, for very good reasons. While other surrogacy destinations have come and gone (India being outlawed from 2015 and Ukraine falling away as a result of the war from 2022 – see BioNews 824 and 1208) the USA has continued to account for the majority of parental orders made in international surrogacy cases since 2009. The reasons go far beyond the availability of US passports.

The USA offers a safe, ethical, well-established surrogacy pathway, underpinned by a secure legal framework and high-quality professional services. Unlike in the UK, parents know they can be matched with a surrogate within a predictable period of time and will have the security of being their child's legal parents from birth. There are also important ethical protections for surrogates, with careful screening by experienced professional agencies and independent legal advice for all, which many of those seeking surrogacy in the USA are keen to access.

These attractions will continue to draw parents to surrogacy in the USA, even if it means a slightly longer stay after their child is born.