The August 6 Executive Orders:What International Surrogacy Families Need to Know Right Now
What Happened — and Why It Affects You
On August 6, 2026, President Trump signed two executive orders. One order may directly affect international intended parents pursuing surrogacy in the United States. The other order is worth monitoring.
The first order — titled Continuing to Protect the Meaning and Value of American Citizenship — is the bigger concern. For the first time, it specifically names commercial surrogacy arrangements in the context of birthright citizenship. The second order, Ending Birth Tourism, targets foreign nationals who travel to the United States primarily to “give birth.”
Here is what these orders do not do: they do not end United States surrogacy. They do not cancel your surrogacy agreement, void a parentage order, or stop a state court from issuing a birth certificate. What they do create is uncertainty — specifically around whether a child born through United States surrogacy to two non-United States-citizen parents will receive a United States passport and whether the Intended Parents will endure harassment when trying to enter the United States.
This article explains what each order actually says, why both face serious legal challenges, and — most importantly — what you should be doing right now.
First, Understand the Difference Between Citizenship and a Passport
These are two different things, and the distinction matters.
Citizenship is a constitutional right that attaches at birth. A United States passport does not create citizenship — it is simply proof that citizenship already exists. What the August 6 order targets is the documentation: it tells federal agencies to stop issuing citizenship documents in certain circumstances. It does not — and legally cannot — strip away a constitutional right that already exists.
What the Citizenship Order Actually Says
The key language is in Section 2(c)(ii) of the order. It instructs federal agencies to decline to issue citizenship documents for United States-born children when neither intended parent is a United States citizen — and it specifically names surrogacy arrangements where intended parents paid a surrogate in the United States to carry and deliver a child.
This is a significant shift from the current Supreme Court decision on birthright citizenship and the State Department position, which says clearly that children born in the United States are citizens at birth regardless of how they were conceived, including through surrogacy or IVF. The August 6 order directs agencies to issue new guidance within 30 days that may change that.
One important exception in the language, if at least one intended parent is a United States citizen, this provision does not apply to your family. Note that the order says citizen, not lawful permanent resident. A green card does not take you outside the reach of this order.
Why This Order Is Likely to Lose in Court
This is not the administration’s first attempt to limit birthright citizenship. In 2025, an earlier order tried to restrict citizenship based on parents’ immigration status. The Supreme Court struck it down on June 30, 2026, in Trump v. Barbara, 609 United States ___, 146 S. Ct. 2438 (2026) — a six-to-three decision.
The Court’s message was clear: the Fourteenth Amendment’s Citizenship Clause is based on where a child is born and whether the child is subject to United States law. Parental status is irrelevant. Words like “mother,” “father,” “lawful,” and “temporary” do not appear in the Citizenship Clause for a simple reason, the Court said: “they did not matter.”
The August 6 order takes a different angle. Instead of focusing on the parents’ immigration status, it argues that the commercial nature of a surrogacy arrangement should create an exception to birthright citizenship — similar to the narrow exception that exists for children of foreign diplomats (who are considered outside United States jurisdiction). The order tries to put commercial surrogacy in that same category.
That argument has two serious problems.
First, the constitutional case is extremely weak. A United States gestational carrier lives in the United States, receives medical care in the United States, gives birth in a United States hospital, and is fully subject to United States law. The baby is born under the full protection of United States law from the first moment of life. The Fourteenth Amendment asks two things: where was the child born, and is the child subject to United States jurisdiction? The surrogacy order tries to substitute a different question: why did the parents arrange the birth here? The Supreme Court’s reasoning in Barbara makes clear that the answer to the second question cannot override the answer to the first.
Second, Congress already codified birthright citizenship in federal statute — 8 United StatesC. § 1401(a). Even if a court agreed that new exceptions to birthright citizenship could theoretically exist, a president cannot create them by executive order while a contrary federal law is still on the books. Justice Kavanaugh said exactly this in his Barbara concurrence: any new exceptions require action by Congress, not the White House. Congress has not acted.
For the August 6 order to hold up, the administration would need to win on both fronts — the constitutional argument and the statutory one. Based on the Barbara decision, neither looks available.
Surrogacy Is Not Birth Tourism
The second executive order — Ending Birth Tourism — targets foreign nationals who travel to the United States for the purpose of “giving birth” themselves. That is not what international intended parents do.
In a standard United States surrogacy arrangement, it is the gestational carrier, who is a United States resident, who gives birth. The intended parents travel here to receive and care for their newborn. They are not entering the United States to give birth. Nothing in the birth tourism order expressly reclassifies that as birth tourism.
That said, international intended parents should review their visa status and travel plans with a qualified attorney before traveling, especially around the time of delivery. Until clearer agency guidance is available we don’t know if intended parents will be harassed and discriminated against when entering into the United States to receive custody of their children and return home to their home country.
What Happens Next
Two things will happen at the same time.
First, federal agencies, primarily the State Department, will release implementation guidance within the 30-day window established by the order. That guidance will start to answer the unresolved questions: what intent standard applies, what counts as a commercial transaction, and how pending applications will be handled.
Second, legal challenges will be filed. Courts can temporarily block an executive order from taking effect while a case is being litigated. Because this order includes a severability clause, a court could block just the surrogacy provision while leaving the rest in place. For families with deliveries coming up soon, a temporary court order blocking enforcement could make all the difference. You need to know whether any such order exists and whether your family is covered by it.
The underlying constitutional questions may eventually return to the Supreme Court. But that process takes time. For families expecting a baby in the near term, the most important developments will happen at the agency guidance and preliminary injunction level — not in a final Supreme Court ruling.
What You Should Do Right Now
The August 6 executive order is not a final legal ruling. It is an executive branch position that still has to be implemented by agencies and tested in court. Here is what every international intended parent should be focused on:
If Your Delivery Is Within the Next Six Weeks — Act Now
Contact your attorney and your agency coordinator immediately and schedule a private consultation. Do not wait for agency guidance to arrive or for a court ruling to come down. Your backup planning needs to happen before delivery, not after a problem appears.
In that meeting, cover three things: the current status of any legal challenges to the order; how the expected agency guidance may affect your passport timeline; and whether any court has issued an order that specifically protects families like yours. Your situation right now is very different from a family that is early in the surrogacy process — do not treat it the same way.
Understand What Each Document Actually Is
A state court parentage order is a product of state law. This executive order does not affect it. A birth certificate records your child’s birth and parentage under state law. Only the federal citizenship documents, a United States passport, for example involve federal agencies and are at the center of this dispute. A problem at the federal level does not undo your parentage judgment or your surrogacy agreement. Know which piece of paper comes from where, and which one is actually at risk.
Find Out Your Home Country’s Path — Before Delivery
Your child may be entitled to immediate citizenship through you under your home country’s laws. Find out now what that process requires, what documents your home country needs, and how long it takes to issue a travel document. For families with European citizenship in particular, the recognition process can be slow and document-heavy. Starting with it and understanding the process before delivery is far easier than scrambling after a passport is delayed.
Identify a Trusted Person on the Ground in the United States
In a true worst-case scenario, an intended parent might not be able to enter the United States before or after their child is born. If that happens, you need someone already here, or someone willing and able to travel here, who can take temporary responsibility for your baby until you can be reunited.
One option is designating a United States citizen friend or family member as an emergency guardian. You need someone who could fly/travel to where the baby as born in the United States and stay with the baby for as long as it takes to get travel documents sorted. And “stay” is the operative word — if your baby does not yet have travel documents, your designated person needs to be prepared to remain with the baby. A guardian who cannot do that is not a real plan. The legal requirements for temporary guardianship also vary by state, so this is a conversation to have with your attorney specifically for the state where your birth is happening.
One person who should not be in this role is your gestational carrier!
We understand it may feel natural to consider her. She is already there, she already knows your baby, and the relationship you have built with her is real. But asking your surrogate to take on this responsibility is not fair to her and it creates legal problems you do not want.
Your gestational carrier has just gone through pregnancy and delivery. She is in a physically and emotionally vulnerable time. The surrogacy journey is designed to end with your baby going home with you. Asking her to step back into a caregiving role, even temporarily, puts her in an extraordinarily difficult emotional position. It is not a reasonable thing to ask of her, regardless of how willing she might be in the moment.
Beyond the emotional concern, it creates legal risk. Your surrogate does not have parental rights through your court order and surrogacy agreement. Placing the baby back in her care, even informally, even temporarily, invites confusion about custody, about her legal status relative to the child, and about whether any prior agreements are being reopened or undermined. Depending on the state, it could create complications that take far longer to unravel than the original passport or travel problems you were trying to solve.
Your guardian needs to be someone entirely separate from your surrogacy arrangement, such as a friend, a family member, or another trusted individual with no prior legal connection to this pregnancy.
Keep Your Records
Intent may become a factor in how agencies apply this order. Gather all of the records of your surrogacy journey, such as clinic records, agency documents, legal correspondence, and the reasons you chose the United States. You are making sure the honest, contemporaneous record of your journey is organized and accessible if it ever needs to be produced.
Show That You Are Going Home
One of the most practical things you can do before you travel is gather documentation that demonstrates you have a life to return to. This is not about proving your intentions to a skeptical audience, but it is about having clear, organized evidence ready if a customs officer or consular official raises questions about why you are in the United States and whether you intend to stay.
The kinds of documentation that help include:
A confirmed return flight. Book your return ticket before you travel and carry the confirmation with you. A one-way ticket into the United States raises questions. A round-trip booking with a firm return date answers them. I know that you do not know how much time your child will need in the hospital or what day exactly that your child will be born; thus, it is best to purchase the changeable ticket and while it is more expensive it is a good insurance policy to assist you in entering the United States.
Proof that you own property in your home country. A deed, a mortgage statement, a rental agreement, or a current utility bill tied to a home you own demonstrates that you have a permanent residence to return to.
Evidence of employment or a deadline to return to work. A letter from your employer stating your expected return date, an approved leave of absence with a return-to-work date, or a contract with performance obligations due after your travel all serve the same purpose: they show that your life, your livelihood, and your obligations are at home not here.
Financial ties. Bank account statements, tax records, or investment accounts held in your home country round out the picture of someone whose center of life is elsewhere.
The underlying message all of this documentation sends are the same: you came to the United States to receive your child, and you are going home. You are not here because you want your child to live in the United States. You are not here to access citizenship as a permanent benefit. That is not what our clients are doing. You had a baby through surrogacy, your family is going home together, and your life in your home country is waiting for you.
None of this documentation is legally required. But having it organized and available in a folder you carry with your travel documents puts you in a far stronger position if questions arise at a port of entry or in a consular interview. It also gives your immigration attorney something concrete to work with if any issue escalates.
Be Honest at the Border — Completely and Without Exception
Every statement you make on a visa application, at a port of entry, or in a consular interview must be truthful and complete. If you are asked about your surrogacy arrangement, answer honestly. Do not guess. Do not minimize. Do not improvise.
The reason to be honest is not only that you are legally required to be. It is that lying to a federal officer is a separate, serious crime with its own consequences — consequences that are worse than anything that might arise from disclosing the surrogacy honestly. Honesty protects you. A false statement, even a well-intentioned one, can follow you for the rest of your life.
Get an Immigration Attorney — Not Just Your Surrogacy Attorney
Visa status, border entry, consular procedures, and what to say to a customs officer are immigration law questions. Your surrogacy attorney is likely not an immigration attorney. You may need both. Ask your agency or your surrogacy legal team for a referral to an immigration attorney who has experience with international families.
The Bottom Line
This order is serious, and the uncertainty it creates for international families, particularly those where neither parent holds United States citizenship, deserves real, practical attention. But it also faces significant legal obstacles: the Fourteenth Amendment, existing federal citizenship law, and the Supreme Court’s own recent reasoning in Trump v. Barbara all point strongly against it.
This is not a moment for panic. It is a moment for clear-eyed, practical planning tailored to where your family specifically is in this process. Watch for agency guidance in early September. Know your home-country options. And if your delivery is approaching contact your attorney now.
The surrogacy community has navigated hard moments before. You are not going through this alone.
Kim Surratt
Surratt Law Practice
