By: Marla Neufeld, Esq. and Marcela Bermudez, Esq.
In a recent cross-over episode of Surrogacy Space X Immigration Coffee Talk, topics of birthright citizenship were discussed in the context of surrogacy. The conversation shed light on the proposed changes to U.S. citizenship laws, the complexities of enforcement, and what intended parents, especially those involved in international surrogacy, need to know moving forward.
The Future of Birthright Citizenship: What Could Change?
Currently, any child born on U.S. soil is granted American citizenship, regardless of their parents’ immigration status. However, the proposed 2025 Birthright Citizenship Act aims to change that, denying automatic citizenship to children whose parents are in the U.S. unlawfully, and potentially even those here legally on temporary visas.
For families building their families through surrogacy, this raises serious concerns. The proposed legislation does not account for the many diverse paths to parenthood, such as the use of surrogates, donor gametes, or non-biological parentage, leaving large legal gaps and unanswered questions.
Legal Gray Areas: Executive Orders and State-Level Enforcement
While the courts have struck down a national injunction against the proposed changes, they have yet to rule on the constitutionality of such an executive order, something President Donald Trump has hinted at pursuing again.
Because birth certificates are issued by states and passports by the federal government, enforcement will likely vary. This could result in children being recognized as U.S. citizens in some contexts but not in others, creating serious implications for travel, documentation, and legal status. Class-action lawsuits are already being prepared to challenge the legality of these changes, and the issue is likely to reach the Supreme Court.
Surrogacy and Statelessness: What’s at Stake?
A particularly complex issue arises when surrogacy intersects with immigration law. Children born in the U.S. to non-citizen intended parents could be left in legal limbo, stateless or at risk of deportation, if the rules around birthright citizenship change.
Advice for Intended Parents
In light of the recent uncertainty, international intended parents should be proactive about understanding both U.S. immigration law and the policies of their home countries regarding the citizenship of children born abroad.
Recommendations:
- Closely monitoring updates from U.S. government agencies and the White House
- Staying connected with surrogacy advocacy groups and legal professionals
- Ensuring all legal documents are carefully reviewed in both countries
As the legal landscape surrounding birthright citizenship continues to shift, particularly in an election year, families using surrogacy must stay alert and informed. The risks of legal ambiguity—from travel restrictions to stateless children—make it essential to work with experienced legal counsel and advocacy organizations.