
20 Jan 2025 Trump Administration Executive Order re: Birthright Citizenship and what it means for Surrogacy
We know many of our clients and professional colleagues are confused and concerned about whether Mr. Trump, who’s second term started today, can eliminate or impact birthright citizenship in the U.S. and whether this will have any impact on the children born to intended parents coming to the U.S. for surrogacy.
The short answer is: any contemplated changes here will at most be extremely limited and will likely have no impact on intended parents coming to the U.S. for surrogacy. We will continue to monitor developments on this topic, we will post relevant updates, and we are always available to answer any questions in this regard.
For the long answer to this question, please see below.
Trump’s administration is seeking a new interpretation of the constitutional right of citizenship for children born on U.S. soil. For now, the new interpretation he is seeking through his executive order is that children of PARENTS WHO ARE ILLEGALLY (residing) in the country would not qualify for birthright citizenship. Because intended parents from other countries engaging in surrogacy in the U.S. are not residing in the U.S. illegally, this interpretation should have no impact on surrogacy.
Litigation has already been filed to block this order because birthright citizenship under the U.S. Constitution is not conditioned on the status of the parents and asking the U.S. State Department to violate federal law (to stop issuing passports to those legally entitled to them) is illegal. The U.S. government has long interpreted the 14th Amendment of the Constitution as granting a right of citizenship for those born on American soil, regardless of their parents' immigration status. In the meantime, citizenship and passports for ALL children born in the U.S. will continue to be granted unless and until the U.S. Constitution is changed, and this is extremely unlikely.
Birthright citizenship (citizenship by being born on U.S. soil) has been a cornerstone of the 14th Amendment to the U.S. Constitution since 1868. Changing this, requires a change to the U.S. Constitution, which is indeed quite hard to achieve. The U.S. Constitution provides that an amendment may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the U.S. Constitution have been proposed by constitutional convention. Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. A proposed amendment, once approved through the above process, only becomes part of the Constitution when it is subsequently ratified by three-fourths of the States (38 of 50 States). Getting this much consensus on changing something that’s been a cornerstone of the U.S. Constitution for over 150 years.
In the meantime, if such an executive order is deemed legitimate in whole or in part, which is unlikely, it would still likely not apply to intended parents from other countries engaging in surrogacy in the U.S. simply because the scope of the order is to apply to children of parents are residing in the country illegally.
There is one other way in which Trump’s administration could potentially attack this cornerstone of birthright citizenship in the U.S. – attempting to overturn a Supreme Court ruling in 1898 in the case of United States vs. Wong Kim Ark. The Court ruled in this case that a man born in San Francisco to parents who were both from China was a U.S. citizen. The parents were both admitted legally into the U.S. In the ruling in that case, it was assumed that whatever the status of their parents, people born in the U.S. have citizenship. Birthright citizenship critics argue that the ruling did not address whether the children of parents who entered the country illegally are U.S. citizens (again, in the 1898 case, the parents had been lawfully admitted.) Birthright citizenship critics suggest the ruling assumes that the children of people who enter the country illegally do not have citizenship, but the court never said that because it was not the issue before them in that case.
As noted above, intended parents from outside the U.S., engaging in surrogacy in the U.S., fall under a different category unrelated to this: intended parents are not immigrants to the U.S. If the Trump administration seeks to challenge and overrule “Wong Kim Ark”, the process would take quite some time to work its way through the court. However, as noted above, intended parents from other countries coming to the U.S. for surrogacy are not immigrating to the U.S. and so there is no question of whether they are legal or illegal immigrants to the U.S.; therefore, what happens with this case is likely not relevant to children born via surrogacy to non-U.S. citizen intended parents.
Finally, in a worst-case scenario, if all of the above analysis was proven wrong, there is still a viable alternative for children born in the U.S. via surrogacy to intended parents from other countries. Such children could obtain a Laissez Passer from the home country’s Embassy or Consulate here in the U.S. and the baby would travel home on that travel document. [Note: this approach was utilized in the early days of the COVID pandemic, when the U.S. Passport Office was shut down.]
IFLG will continue to monitor this closely and we will be updating our advice on this issue as the story unfolds. Please reach out to us with any questions.