Birthright Citizenship for International Surrogacy Cases: Can Trump End It?
On January 20, 2025, President Donald Trump signed an executive order seeking to end birthright citizenship. This policy has long granted automatic U.S. citizenship to any child born on American soil, regardless of the parents' immigration status. For families using international surrogacy, this announcement raises many questions about the future of birthright citizenship and its impact on the children born through this process.
At Brinkley Law Firm, LLC, we understand the worries and challenges these changes may present for families, and we are committed to providing clear, compassionate legal guidance to help you navigate these uncertain waters.
What is Birthright Citizenship?
Birthright citizenship is the legal principle that grants U.S. citizenship to any child born within the United States. This right is enshrined in the 14th Amendment of the U.S. Constitution, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
However, President Trump's recent executive order aims to reinterpret the 14th Amendment’s guarantee of birthright citizenship. The order asserts that children born to noncitizen parents may not be considered "subject to the jurisdiction" of the United States, which is a crucial phrase in the amendment’s wording. This reinterpretation directly challenges the automatic citizenship provision and introduces uncertainty for families relying on this longstanding principle.
How Does This Affect International Surrogacy?
For families engaged in international surrogacy who have decided to pursue surrogacy in the United States, this news has caused great concern. Intended parents often choose U.S. surrogacy due to our high ethical standards in third-party reproduction. The intended parents legally come to the United State for our surrogacy services. While their child, born on U.S. soil to a surrogate becomes a U.S. citizen, it isn't the reason they do surrogacy in the United States. The citizenship merely provides peace of mind to the parents, knowing that their child would be able to secure an American passport with ease in order to immediately travel home to their native country, where the child will obtain citizenship through their parents.
The executive order now creates fear for international parents who have relied on the presumption of birthright citizenship for their child. If the policy change is upheld, children born to noncitizen parents through international surrogacy may cause these children to remain in the United State longer while they wait for citizenship in their own country. This creates potential complications for intended parents, who may now face additional legal hurdles to ensure that their child is able to travel to their home country shortly after birth. The process could require time-consuming and costly legal steps to secure the child’s status in their home country, creating an added layer of complexity for families already traversing the challenges of surrogacy.
What Legal Challenges Lie Ahead?
It’s important to understand that the executive order does not immediately alter the law.
The principle of birthright citizenship is embedded in the U.S. Constitution, and any significant change to its interpretation will face considerable legal obstacles.
In response to the executive order, attorney generals from 22 states (and counting), along with various advocacy groups, have filed lawsuits to challenge the order, arguing that it violates the 14th Amendment. These groups contend that the president does not have the authority to alter such a fundamental aspect of American citizenship law.
The U.S. Supreme Court has historically upheld birthright citizenship. A landmark case, United States v. Wong Kim Ark (1898), confirmed that children born in the U.S. to immigrant parents are citizens, regardless of the parents’ citizenship status. Given the historical precedent, experts believe that any attempts to end birthright citizenship would require a constitutional amendment or a definitive Supreme Court ruling. This legal battle is likely to take years to resolve, and it remains unclear how the courts will ultimately rule.
What Should International Surrogacy Parents Do Now?
In light of the uncertainty created by the executive order, intended parents pursuing surrogacy in the United States must remain proactive and informed. While the order has not yet changed the law, it is essential to stay up to date on any developments regarding the executive order and related legal challenges. Families involved in international surrogacy should also work with informed attorneys who specialize in family law and surrogacy law to understand their rights and responsibilities.
Consulting an experienced attorney is particularly important in this situation. The knowledgeable surrogacy legal advocates at Brinkley Law Firm can offer clarity on how these changes may affect your child’s citizenship status and advise on the best steps to take to protect your family.
If you are pursuing surrogacy in the U.S., our compassionate attorneys can also guide you through the legal process and help you navigate any potential complications, ensuring that your child’s citizenship status is secure.
What’s the Path Forward for Families?
While it’s understandable that families may feel anxious about the uncertainty caused by the executive order, it’s important to remember that birthright citizenship has been a foundational principle of U.S. law for over 100 years. The fight to protect birthright citizenship is far from over, and legal experts are working tirelessly to defend this vital protection for families. The outcome of the legal challenges will ultimately determine whether the executive order can alter the interpretation of the 14th Amendment.
For now, families pursuing international surrogacy should stay informed about the status of the executive order and work with qualified attorneys to ensure they understand their legal rights.
At Brinkley Law Firm, we are committed to helping you navigate these confusing legal issues and providing guidance tailored to your unique circumstances.
Whether you're currently involved in international surrogacy or planning to pursue it, we can help you understand how these developments may impact your family and what steps you can take to protect your child’s future.
Brinkley Law Firm; Protecting Your Family’s Future
At Brinkley Law Firm, we understand the importance of birthright citizenship in international surrogacy and the concerns many families have in light of the recent executive order. As dedicated legal advocates in surrogacy and family law, we are here to help guide you through these uncertain times and offer you the support you need to protect your family’s future. We value every client we assist and our testimonials demonstrate the care and attention we provide.
If you are considering surrogacy in the U.S. or have questions about how the executive order may affect your child’s citizenship, we encourage you to contact us today for a consultation.
Together, we can ensure that your family’s legal rights are safeguarded during these changing times.