What Does Birthright Citizenship Mean for Surrogacy in the U.S.?

Introduction

For international families choosing gestational surrogacy in the U.S., birthright citizenship has long been a pillar of legal certainty. Children born on U.S. soil typically receive automatic U.S. citizenship under the 14th Amendment—a key reason many people opt for U.S. surrogacy. But recent legal and policy changes have raised uncertainty.

This article explains:

• The constitutional basis for birthright citizenship

• How recent executive orders and court rulings may affect children born via surrogacy

• Steps Intended Parents should take to protect their child’s citizenship

  
  

The 14th Amendment & Constitutional Basis for Birthright Citizenship

The Fourteenth Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” (Congress.gov)

This clause, known as the Citizenship Clause, has been interpreted by courts to mean nearly every child born on U.S. soil acquires citizenship at birth, regardless of their parents’ immigration status (American Immigration Council).

A landmark case, United States v. Wong Kim Ark (1898), affirmed that a child born in the U.S. to immigrant parents is still a U.S. citizen (Constitution Center, FindLaw).

Exceptions exist, such as children of foreign diplomats, because they are not considered “subject to the jurisdiction” of the U.S. (Brennan Center for Justice).

Executive Order 14160 & Recent Legal Changes

On January 20, 2025, President Trump signed Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.” The order attempts to reinterpret the Citizenship Clause by denying automatic U.S. citizenship in certain cases—specifically for children born to parents who are undocumented or legally present on temporary visas such as student or tourist visas (Wikipedia, Goodwin Law).

The order also directs agencies to stop issuing U.S. passports, Social Security numbers, or other documents signifying citizenship in these situations (Brennan Center for Justice).

Legal Challenges

• Nationwide injunctions: Several federal courts blocked the order’s enforcement, ruling it likely unconstitutional (Ivy Surrogacy, Village Law Group).

• Supreme Court decision (June 2025): Limited courts’ ability to issue nationwide injunctions, allowing partial or regional enforcement of the order.

• Appeals Court ruling (July 2025): The 9th Circuit blocked enforcement, holding that the order violated the 14th Amendment (Reuters).

The result is a fragmented and unsettled legal landscape that creates uncertainty for children born through surrogacy to foreign Intended Parents.

Why Birthright Citizenship Has Been Key for Surrogacy

For international Intended Parents, U.S. gestational surrogacy has always been attractive because it traditionally ensured:

• Their child would receive U.S. citizenship at birth

• A U.S. passport could be issued immediately

• Legal parentage and rights would be clearer

This reduced the risk of statelessness or complicated immigration processes. With new legal challenges, however, these assurances are less certain—especially in states enforcing the executive order.

Legal & Practical Risks for Surrogacy Families

• Inconsistent application by region: Citizenship may be recognized in some states but not others.

• Delayed documentation: Passports or Social Security numbers may take longer to obtain.

• Risk of statelessness: If no citizenship is granted from the U.S. or the parents’ home country.

• Ongoing litigation: Future rulings could change the situation again.

What Intended Parents Should Do

1. Hire specialized legal counsel in reproductive and immigration law.

2. Structure surrogacy contracts carefully to anticipate citizenship issues.

3. Choose the birth state strategically, based on current legal climate.

4. Maintain thorough documentation of medical, legal, and birth records.

5. Stay updated on evolving court rulings and policy changes.

ACRC Global’s Commitment

At ACRC Global — U.S. Surrogacy Agency in California & New York, we remain deeply informed about changes in surrogacy law, citizenship, and policy. Our experienced team works with trusted attorneys to guide Intended Parents at every step, ensuring that families feel supported and secure—even in uncertain times.

Conclusion

Birthright citizenship has long provided a secure foundation for families pursuing surrogacy in the United States. But given recent executive orders and legal rulings, automatic citizenship for children born through surrogacy is no longer guaranteed in every case. International Intended Parents must proceed with foresight, legal guidance, and careful planning to protect their child’s future.

Further Reading & Resources

• American Immigration Council – Birthright Citizenship in the United States

• Brennan Center – Birthright Citizenship Under the U.S. Constitution

• Goodwin Law – Changes to Birthright Citizenship and the Impact on Fertility and Assisted Reproduction

• IFLG – What the Supreme Court Ruling on Birthright Citizenship Means for International Surrogacy Clients

• Village Law Group – Executive Order on Birthright Citizenship and Impact on Surrogacy