U.S. Birthright Citizenship and Surrogacy: What the September 2026 Court Ruling Means for Intended Parents
- ACRC Global
- 57 minutes ago
- 9 min read
Updated September 3, 2026
International intended parents pursuing surrogacy in the United States may be concerned about two August 2026 executive orders addressing birthright citizenship and so-called “birth tourism.” One order expressly referred to a commercial transaction with a surrogate, while the other focused on visa and entry policy. On September 2, a federal judge in Maryland issued a preliminary injunction that prevents federal officials from applying the citizenship order to a defined class of children while the case continues.
The short answer is reassuring but requires care: the September 2 ruling provides significant protection to the children covered by the court-defined class, and the U.S. Supreme Court has affirmed that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth. However, the injunction is preliminary, its scope is tied to a specific class definition, and it does not resolve every possible surrogacy, citizenship, passport, visa, or border-entry question.
The executive orders also do not, by their terms, prohibit surrogacy, cancel state parentage orders, or invalidate state surrogacy laws. Citizenship recognition, state-law parentage, birth certificates, passports, and the intended parents’ immigration status are related but legally distinct matters.
Quick answer: What changed on September 2, 2026?
U.S. District Judge Deborah L. Boardman granted a preliminary injunction in CASA, Inc. v. Trump. The order bars the defendant federal agencies and officials from enforcing Executive Order 14418 against members of an already certified class or otherwise interfering with their citizenship. The certified class generally includes children born in the United States after February 19, 2025, whose mother was either unlawfully present or lawfully but temporarily present and whose father was neither a U.S. citizen nor a lawful permanent resident at the time of birth.
This was not a final trial judgment. The litigation can continue, the government can seek review, and the injunction may later be modified or dissolved. The court also allowed federal agencies to continue developing implementation guidance.
The ruling followed the U.S. Supreme Court’s June 30, 2026 decision in Trump v. Barbara. The Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present are “citizens at birth” under the Fourteenth Amendment. The Maryland court concluded that Executive Order 14418 was highly likely to be unconstitutional as applied to the same class.
What did Executive Order 14418 say about surrogacy?
President Donald Trump signed Executive Order 14418 on August 6, 2026. It directed federal departments and agencies not to issue or accept documents recognizing U.S. citizenship in specified circumstances when neither parent was a U.S. citizen.
One provision included situations in which a parent allegedly engaged in a commercial transaction to obtain birthright citizenship, including a transaction “with a surrogate present in the United States” to give birth. That language understandably created concern among international intended parents, even when their U.S. surrogacy journey was lawful, carefully documented, and not undertaken to evade immigration law.
The September 2 court did not issue a final ruling on the constitutionality of every individual category listed in the executive order. Instead, it held that the order was likely unconstitutional as applied to the certified class, because the Supreme Court had already determined that children in that class are citizens at birth. The court enjoined enforcement of the order against class members.
Did the Supreme Court already decide the main birthright citizenship question?
Yes, in a major decision issued on June 30, 2026. In Trump v. Barbara, the Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present are subject to U.S. jurisdiction and are citizens at birth under the Fourteenth Amendment.
The Court described the traditional rule as broad, with narrow historical exceptions. Its opinion discussed children of foreign ministers and children born in territory under hostile occupation as examples connected to the absence of ordinary U.S. jurisdiction. It did not create a surrogacy-specific exception.
That Supreme Court decision is binding precedent and was central to the Maryland judge’s reasoning. The September 2 court stated that a presidential executive order cannot undo the Supreme Court’s holding that children in the certified class are citizens at birth.
Does the injunction protect every baby born through U.S. surrogacy?
It would be inaccurate to say that the preliminary injunction automatically resolves every surrogacy case.
The injunction protects members of a class defined by the immigration status of the child’s mother and father at the time of birth. In a surrogacy journey, the identity of a “mother,” “father,” or “parent” may depend on the wording of federal policy, genetic or gestational relationships, and state parentage law. A U.S. citizen surrogate, for example, presents a different factual situation from the temporary-status mothers described in the certified class.
For that reason, intended parents should not assume either that their baby is outside the order or that the September 2 injunction unquestionably covers their individual arrangement. An experienced assisted-reproduction attorney and, where necessary, an immigration or nationality attorney should review the facts, including:
Where the baby will be born
The surrogate’s citizenship and immigration status
Each intended parent’s citizenship and immigration status
Genetic and gestational relationships
The applicable state’s parentage process
The wording and timing of pre-birth or post-birth parentage orders
Birth-certificate and passport requirements
The intended parents’ visa category and travel history
Did the executive order make surrogacy illegal in the United States?
No. Executive Order 14418 addresses federal recognition of citizenship documents in specified circumstances. It does not itself prohibit gestational surrogacy, replace state surrogacy statutes, or cancel state-court parentage orders.
Surrogacy and parentage continue to be governed largely by state law, and the requirements vary by state. A state parentage order can establish who the legal parents are under state law. Federal agencies, however, determine federal matters such as U.S. passports and citizenship documentation. Families therefore need both a sound state-law parentage plan and advice about any federal documentation issues that apply to them.
What is the difference between citizenship, parentage, a birth certificate, and a passport?
These documents and legal concepts are often discussed together, but they are not interchangeable:
Citizenship is a legal status governed by the U.S. Constitution and federal law.
Parentage determines who the child’s legal parents are, usually through state law and court procedures in a U.S. surrogacy journey.
A birth certificate is a state-issued vital record. It records the birth and, depending on applicable law and court orders, the child’s parents.
A U.S. passport is a federal travel and citizenship document issued after the Department of State reviews the application and supporting evidence.
A state birth certificate or parentage order is important, but families should not treat it as a substitute for individualized advice about federal citizenship or passport requirements.
What about visas and U.S. entry for international intended parents?
Visa and entry questions are separate from a baby’s citizenship.
A second order, Executive Order 14419, “Ending Birth Tourism”, was also signed on August 6, 2026. It defines birth tourism as a foreign national entering the United States on a nonimmigrant visa for the purpose of giving birth on U.S. soil, or a foreign national facilitating another foreign national’s entry for that purpose. It authorizes the Department of State and Department of Homeland Security to adopt rules and guidance concerning visas, travel authorizations, and admission.
The September 2 preliminary injunction addressed Executive Order 14418. It did not halt Executive Order 14419.
The text of Executive Order 14419 does not expressly say that an intended parent is ineligible for a visa merely because the person is traveling to welcome a child carried by a U.S.-based surrogate. That is factually different from a pregnant visa applicant entering the country to give birth. Nevertheless, a visa does not guarantee admission, and decisions are individual. The purpose of travel, the selected visa classification, supporting documents, prior immigration history, and answers given to consular or border officials may all matter.
The Department of State’s existing birth-tourism visa guidance states that a B visa may be denied when an officer has reason to believe the applicant’s primary purpose is to give birth in the United States to obtain citizenship for the child. This guidance concerns the person who will give birth; it should not be casually applied to a non-pregnant intended parent without case-specific legal analysis.
International intended parents should:
Seek advice from a qualified U.S. immigration attorney before applying for a visa or traveling.
Use the visa category appropriate to the actual purpose of the trip.
Answer all visa-application and border questions truthfully and consistently.
Never conceal the surrogacy journey or misrepresent a material fact.
Carry documents recommended by counsel, which may include the surrogacy agreement, attorney letter, parentage orders, medical or hospital information, accommodation details, proof of funds, return-travel plans, and evidence of ties outside the United States.
Under federal immigration law, fraud or a willful misrepresentation of a material fact can create serious inadmissibility consequences. The official USCIS Policy Manual explains the elements considered in fraud and willful-misrepresentation determinations.
What should international intended parents do now?
The most useful response is careful planning, not panic. Intended parents who are already matched, expecting a baby, or preparing to travel should speak promptly with the independent attorneys handling their journey.
Ask for a coordinated review of:
The parentage strategy in the state where the baby will be born
The expected birth-certificate process
The baby’s U.S. passport and other citizenship documentation
The intended parents’ visa applications and entry plan
Documents to carry to a consular interview or U.S. port of entry
Backup planning if agency guidance, litigation, or processing procedures change
The child’s citizenship, passport, or travel-document requirements in the intended parents’ home country
Avoid relying on social-media summaries, assumptions based on another family’s case, or assurances that any outcome is “guaranteed.” Citizenship, parentage, passports, and immigration are different legal questions, and individual facts can materially change the analysis.
How ACRC Surrogacy Supports International Families
ACRC Surrogacy provides dedicated coordination throughout every stage of a U.S. surrogacy journey. Our team helps international intended parents understand the process, prepare for important milestones, and maintain clear communication with their surrogate, fertility clinic, attorneys, and other professionals involved.
When citizenship, immigration, parentage, or passport questions arise, we help families connect and coordinate with appropriately licensed, independent counsel. This collaborative approach gives intended parents organized, personalized support while ensuring that legal guidance comes from qualified professionals familiar with their circumstances.
If you are exploring U.S. surrogacy and would like to understand the process, timeline, and support available, book a complimentary consultation with ACRC Surrogacy.
Frequently asked questions
Are babies born through surrogacy in the United States still U.S. citizens?
The Supreme Court held in Trump v. Barbara that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment, subject to narrow historical exceptions. A later executive order attempted to create additional categories, including language concerning surrogacy, but a federal court preliminarily blocked enforcement against a defined class. Because a surrogacy arrangement can involve distinct genetic, gestational, and legal parents, families should obtain an individual legal analysis rather than rely on a universal answer.
What exactly did the September 2, 2026 court order do?
It temporarily barred specified federal defendants from enforcing Executive Order 14418 against members of a certified class or interfering with their citizenship while the litigation continues. It was a preliminary injunction, not a final decision on every application of the executive order.
Is the September 2026 injunction nationwide?
It is classwide rather than a universal injunction for every person. The certified class includes current and future children throughout the United States who satisfy the court’s specific definition. Whether a particular child born through surrogacy falls within that definition should be assessed by counsel.
Did the court strike down the surrogacy provision permanently?
No. The court did not enter a final judgment declaring every listed exception invalid in every circumstance. It found the order likely unconstitutional as applied to the certified class and issued preliminary relief for that class.
Can international intended parents still travel to the United States for their baby’s birth?
There is no statement in Executive Order 14419 that automatically prohibits an intended parent from traveling solely because a U.S.-based surrogate is giving birth. However, visa eligibility and admission are decided case by case. Intended parents should obtain immigration advice, select the correct travel category, and give complete and truthful information.
Does a parentage order guarantee a U.S. passport for the baby?
No single document should be treated as an automatic guarantee. A parentage order addresses legal parentage under state law, while the Department of State determines passport eligibility under federal law after reviewing the application and evidence.
Can ACRC give legal or immigration advice?
ACRC Surrogacy provides journey coordination and general information, not legal, immigration, or consular advice. Intended parents should rely on their independent surrogacy and immigration attorneys for advice specific to their circumstances.
Sources and further reading
Disclaimer: This article is provided for general informational purposes only and reflects sources available as of September 3, 2026. It is not legal, immigration, nationality, consular, or tax advice. Laws, court orders, agency guidance, and procedures can change, and individual circumstances vary. Consult appropriately licensed legal counsel and the relevant government or consular authority regarding your specific situation.
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