At the end of June, the US Supreme Court ruled that Donald Trump’s first Executive Order attempting to end birthright citizenship was unconstitutional. Less than six weeks later, he had issued two further Executive Orders.
One of these seeks to effectively prevent birthright citizenship for children whose parents “engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth” (among other categories of parent). The other seeks to end “birth tourism” by giving various powers to revoke visas and deny entry to those seeking to engage in birth tourism. It remains unclear whether intended parents entering the US for the birth of children born via surrogacy might be caught within this Order’s terms.
On 2 September, a Federal Judge had issued a preliminary injunction preventing the enforcement of the first Executive Order. Litigation continues, and it’s uncertain how things will ultimately play out.
Intended Parents looking to pursue overseas surrogacy should always take advice on the immigration and citizenship position for their child at the earliest opportunity, to ensure they are prepared for how they will get home. This is now all the more important for those involved in, or contemplating, such arrangements in the US (as well as taking advice on any family and US law implications).
Historically it’s been fairly easy and quick to obtain a US passport, and that has provided the golden ticket home for most families. If that changes however, navigating the immigration position for children born through surrogacy in the US will become more costly and protracted. This is certainly a development to keep an eye on.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
