What Intended Parents Need to Know Right Now
Surratt Law
September 3, 2026
What Is Happening and Why It Matters to You
If you are an intended parent working with a surrogate in the United States, you are likely aware that the federal government has been attempting to change the rules around birthright citizenship — the longstanding legal principle that any child born on U.S. soil is automatically a U.S. citizen. There have now been two executive orders on this subject, a major Supreme Court ruling, and most recently, a federal court injunction. This summary explains where things stand today, what it means for your child, and what to watch for next.
A Quick Timeline: How We Got Here
The First Executive Order (January 2025)
Shortly after taking office, President Trump signed an executive order declaring that children born in the United States to parents who are not citizens and are either in the country unlawfully or on a temporary visa would no longer automatically receive U.S. citizenship. This order was immediately challenged in court and blocked by multiple federal judges, including in Maryland and New Hampshire.
The Supreme Court Ruling (June 2026)
In June 2026, in a case called Trump v. Barbara, the Supreme Court struck down the 2025 executive order as unconstitutional. The Court reaffirmed that birthright citizenship — the principle that being born on U.S. soil makes you a citizen — is protected by the Fourteenth Amendment to the Constitution. The Court held that children born in the United States to parents who are unlawfully or temporarily present here are, without question, citizens at birth.
The Second Executive Order (August 6, 2026)
One month after losing at the Supreme Court, the President signed a new executive order — Executive Order 14418 — attempting a different approach. Rather than targeting parents who are here illegally or on temporary visas broadly, this new order tries to carve out three specific categories of children who it says should not receive automatic citizenship:
- Children of parents who are classified as “alien enemies”
- Children of foreign government employees
- Children born through so-called “birth tourism” (parents who travel to the U.S. specifically to give birth)
The order directed federal agencies — including the State Department, Homeland Security, USCIS, and the Social Security Administration — to stop issuing citizenship documents (such as U.S. passports and Social Security numbers) to children in these categories. Agencies were also given until September 5, 2026 to publish guidance explaining how they would carry out the order.
The Court’s Injunction (September 2, 2026)
On September 2, 2026, U.S. District Judge Deborah Boardman in Maryland issued a preliminary injunction — meaning she temporarily blocked enforcement of the new executive order. However, the block is limited in an important way, explained below.
What the Court’s Order Does — and Does Not Do
What Is Blocked
The court blocked the government from applying the new executive order to the existing group of families who were already parties to the original lawsuit — specifically, children who would have had their citizenship denied under the first executive order. For those families and children, the government cannot use the new order to deny or interfere with their citizenship.
What Is Not Blocked
This is critically important: the court’s order is limited to that existing group of families from the original case. The court explicitly declined to rule on whether the new executive order’s three new categories — alien enemies, foreign government employees, and birth tourism — are constitutional as applied to everyone else. Those questions were left open for future litigation.
In plain terms: the court did not issue a nationwide block on all of the new order’s provisions. People who fall only under the new order’s categories — and not under the original lawsuit’s class definition — are not currently protected by this injunction.
The court also specifically chose not to block the September 5 agency guidance deadline. Federal agencies may still publish their implementation guidance on schedule. In fact, the court left open the possibility that once that guidance is published, the government could ask the court to revisit or modify the injunction.
What This Means for Intended Parents Using Surrogacy
The Surrogacy Question Is Unresolved
The new executive order appears to include provisions that could affect some children born through surrogacy arrangements, particularly those involving foreign intended parents. However, the court’s September 2 ruling did not address the surrogacy provisions at all. Judge Boardman explicitly declined to rule on the constitutionality of the new categories as applied to anyone outside the existing group of litigants.
This means that how the government intends to treat children born through surrogacy to foreign intended parents remains legally unsettled until either:
- The agencies publish their implementation guidance (due September 5), or
- A court addresses the surrogacy provisions directly in future litigation
The September 5 Guidance Is the Next Critical Development
The most important document to watch for right now is the agencies’ implementation guidance, which is due by September 5, 2026. When that guidance is published — particularly by the State Department regarding U.S. passport applications — it will be the first concrete indication of how the government plans to apply the new executive order in practice. It may clarify whether and how surrogacy situations are treated differently depending on the citizenship status of the intended parents.
A Parallel Case Is Pending in New Hampshire
A separate federal lawsuit challenging the new executive order is proceeding in New Hampshire. That court could issue its own ruling — potentially broader or narrower than the Maryland ruling — which could affect the legal landscape further.
The Government May Go Back to the Supreme Court
Attorney General Todd Blanche has stated publicly that the administration anticipated an adverse ruling and may return to the Supreme Court. A request for a stay of the injunction is possible, which could affect the protections currently in place.
What Has Not Changed
The core constitutional principle affirmed by the Supreme Court in June 2026 remains the law: children born in the United States to parents who are unlawfully or temporarily present are citizens at birth. That ruling cannot be undone by executive order. What remains in dispute is whether the new order’s specific categories — alien enemies, foreign government employees, and birth tourism — represent permissible, narrow exceptions to that rule. Courts have not yet resolved that question.
What You Should Do Right Now
Stay in close contact with your attorney
The legal situation is moving quickly. Implementation guidance could be published any day, and additional court rulings in both Maryland and New Hampshire are expected. Your attorney will notify you of any developments that directly affect your case.
Do not delay any citizenship documentation steps
If your child has already been born or is due soon, do not delay applying for a U.S. passport. Acting promptly protects your child’s citizenship record and creates a documentary trail that may be important if disputes arise.
Understand your specific situation
The risks and open questions vary depending on the citizenship status of you and your co-parent (if applicable), the nature of your surrogacy arrangement, and where your surrogate lives. Make sure your attorney has a complete picture of your circumstances so they can advise you on your specific exposure to any of the new order’s provisions.
Know that this situation is being actively litigated
Federal courts have now blocked two separate executive orders on this subject. The Supreme Court has ruled once in favor of birthright citizenship. This is an area where the legal protections are real and courts have been willing to enforce them.
Summary
| Development | Date | What It Means for You |
|---|---|---|
| Supreme Court strikes down first EO | June 2026 | Birthright citizenship reaffirmed for children of unlawful/temporary residents |
| Second executive order signed (EO 14418) | August 6, 2026 | New attempt with narrower categories; surrogacy provisions included |
| Maryland court blocks new EO — for existing class only | September 2, 2026 | Limited protection; new categories not yet resolved by any court |
| Agency guidance deadline | September 5, 2026 | Will clarify how agencies plan to apply the new order in practice |
| New Hampshire case pending | Ongoing | Could produce broader ruling; watch for developments |
This summary was prepared for informational purposes only and does not constitute legal advice. Please contact your attorney at Surratt Law directly to discuss how current legal developments apply to your specific situation.
