
23 Jan 2025 Federal Court Temporarily Blocks Executive Order Which Attempts To Restrict Automatic Citizenship To Babies Born on U.S. Soil
U.S. District Court Judge John Coughenour blocked the implementation of the Executive Order, calling it “blatantly unconstitutional.”
On Monday, the 20th of January, President Trump issued an executive order (“EO”) attempting to restrict birthright citizenship which is enshrined in the 14th Amendment to the U.S. Constitution. Within 24 hours, six lawsuits were filed by 22 states, two cities and a host of other private and charitable organizations in Federal Court to challenge the EO. Less than 72 hours from the issuance of the EO, U.S. District Court Judge John Coughenour blocked the implementation of the EO, through an injunction, calling it “blatantly unconstitutional.”
The injunction means that while those lawsuits are pending [*Note: these lawsuits will likely take months to resolve], the law of the land (birthright citizenship) remains in place as we expected (see: https://www.iflg.net/trump-administration-executive-order-birthright-citizenship-and-what-it-means-for-surrogacy/).
Legal scholars almost universally agree that the EO will eventually be struck down as unconstitutional.
The first prong of the EO states that children born on U.S. soil to illegal immigrants should not be entitled to automatic U.S. citizenship. Even if the EO is not struck down, the situation envisioned in prong one would generally not apply to international intended parents coming to the U.S. for surrogacy. However, while the challenges are moving through the courts, it’s important from the perspective of surrogacy to look at the second prong of the EO.
Prong two states that if at least one of the parents is not a U.S. citizen or lawful permanent resident (Green Card holder), the child born on U.S. soil should not be a U.S. citizen, regardless of birth on U.S. soil. This could potentially apply to cases in which the parents are in the U.S. with no status, or in the U.S. as nonimmigrants such as under a Visa Waiver/ ESTA, B2, etc. However, it goes on to (vaguely) define mother and father as the immediate female or male biological progenitor. Of course, the concept of "mother" or "father" is far more nuanced in the context of assisted reproduction/surrogacy and adoption, and the EO (not surprisingly) fails to address that level of layering.
Therefore, while it seems like it could have broad application, prong two of the EO is really intended to apply to the so-called “anchor baby” situation and curbing what’s referred to as “chain migration” - where pregnant women from other countries come to the U.S. to deliver, so that their children are U.S. citizens – with the possible expectation that it will provide the parents with immigration options in the future, hence the term "chain migration" – all of which is legal under the U.S. Constitution. Prong two is essentially intended to apply to those who this Administration sees as manipulating U.S. immigration laws. Intended parents do not fall into these categories.
As a side note, most individuals and families come to the U.S. for international surrogacy for a variety of reasons, most of which are not related to U.S. citizenship and immigration, but rather, because the U.S. is a desirable surrogacy destination due to the solid legal and medical foundations supporting safe and ethical assisted reproduction through IVF and surrogacy.
While the litigation progresses, it is also important to know that Section 3.b of the EO also states:
“…the heads of all executive departments and agencies shall issue public guidance within 30 days of the date of this order regarding this order’s implementation with respect to their operations and activities.”
The absence of clarity in the EO when it comes to the many nuanced and complex immigration situations potentially impacted makes it nearly impossible to issue comprehensive guidance to implement the EO, inviting still more litigation to seek the necessary clarity, if the EO isn’t fully struck down to begin with.
IFLG believes that America’s diversity is our strength, and we support the efforts to make sure the EO is ultimately defeated.
While all of this is pending, IFLG and our reproductive law colleagues will also be investigating, discussing and outlining contingency plans and options to assist families.
Of course, we will also continue to monitor this closely and issue updates when possible.
Richard B Vaughn
Founding Partner
International Fertility Law Group