Second Birthright Citizenship Update: The September 2 Injunction, New Passport Rules, and a Task Force on the Ground
By Kim Surratt | Surratt Law Practice | September 9, 2026
In August, I wrote a detailed breakdown of the two executive orders signed on August 6, titled Continuing to Protect the Meaning and Value of American Citizenship and Ending Birth Tourism, and what they could mean for international intended parents building their families through U.S. surrogacy. That post was itself an update to our earlier coverage, and I promised you that the picture would keep moving. It has. A federal court has now blocked part of the citizenship order, the State Department has issued its passport guidance, and a new government task force is actively revoking visas.
Here is where things stand as of September 9, 2026.
A Quick Recap for New Readers
If you haven’t read the earlier posts, here is the short version. In June 2026, the Supreme Court held in Trump v. Barbara that the Fourteenth Amendment protects citizenship for children born on U.S. soil, and that the circumstances of their parents’ presence or the manner of their conception, including surrogacy, do not matter. One month later, the Administration signed Executive Order 14418, which attempts to work around that ruling not by stripping citizenship directly, but by directing federal agencies to refuse to document citizenship in certain categories, including, for the first time, children born through commercial surrogacy arrangements where neither intended parent is a U.S. citizen. A companion order, Executive Order 14419, targets so-called “birth tourism.”
As I explained in August: these orders do not end U.S. surrogacy, void your parentage order, or erase your child’s constitutional citizenship. What they create is a documentation and travel problem, and that problem is now taking concrete shape.
Executive Order 14418: What the Citizenship Order Says
The core of the order directs that:
“[N]o executive department or agency shall issue documents recognizing United States citizenship to, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship regarding, persons when neither parent of that person is a citizen and any of the following applies. . .
(c) either parent of that person engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship, to include:
(i) when the parent(s) of the person engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth; or
(ii) when the parent(s) engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth”
Exec. Order No. 14418, 91 Fed. Reg. 51991 (Aug. 11, 2026).
The same restrictions extend to children of “alien enemies,” children of foreign government employees, and children born in U.S. territories or territorial waters where federal statute does not itself confer citizenship. If you believe one of those additional categories might apply to your family, please reach out to us.
The hardest question remains unanswered: will this be applied to every international surrogacy arrangement, or only to those undertaken with U.S. citizenship for the child as a primary or the sole objective? No agency or court has drawn that line yet. At its outer limit, the order could block a U.S. passport for a child born via surrogate in the United States, and by extension make it difficult to travel home with your newborn.
The Court Responds: Casa v. Trump
The legal system moved quickly. Attorneys for the plaintiffs in Casa v. Trump, one of the cases consolidated into Trump v. Barbara, filed for a preliminary injunction, arguing that the citizenship question had already been settled by the Supreme Court and that the new order could still be turned against members of their certified class.
On Wednesday, September 2, 2026, the U.S. District Court in Maryland agreed and blocked enforcement of the order as to that class. Four points from the ruling matter most:
- Who is covered. The injunction protects the class certified in the earlier litigation. In brief, any child born in the United States after February 19, 2025, whose mother was unlawfully present, or lawfully but temporarily present, and whose other parent was neither a U.S. citizen nor a lawful permanent resident. Here is the counterintuitive part I want every client to understand: if you and any co-parent are lawful permanent residents, green card holders, this injunction does not currently protect your family. The class definition simply doesn’t reach you.
- The “prospective only” promise didn’t hold. The government argued the order would apply only going forward. The court noted that nothing in the order’s text says that, and declined to trust the government’s assurance.
- The new categories were not ruled on. The court did not decide whether the orders carve-outs, including the surrogacy provision, are constitutional. It temporarily enjoined enforcement and let the case proceed on the merits. That question remains open.
- Agency guidance may continue. The injunction does not stop agencies from issuing implementation guidance, and the court expressly invited the government to return and ask that the injunction be lifted if that guidance supports such a request.
Parallel litigation is underway in New Hampshire, and we are monitoring it closely.
State Department Guidance: The Surrogacy Question Is To Now Be On the Form
On Friday, September 4, the Department of State issued its implementation guidance, effective immediately. The key portion reads:
“Adjudicative decisions are not made during the acceptance process. The role of the acceptance agent or passport agent is to ensure, to the extent possible, that a complete application with all required information and documentation is received. Passport agency staff will review the application for all requisite information, including each parent’s citizenship status. Passport agency staff will utilize the existing parental data fields on form DS-11, submitted documents, relevant government records, and other indicators to assess whether an applicant is within the categories of children of aliens who fall within the scope of EO 14418. If neither parent of a minor applicant is a US citizen, an attestation from each parent, under penalty of perjury, must be submitted as part of the determination whether either parent meets any of the EO conditions. Any misrepresentations made under penalty of perjury could subject the individual(s) to legal liability, including potential federal criminal prosecution. If the parents’ answers confirm that no conditions are met, the Department will continue adjudication of the passport. If the attestation is not submitted at the time of application, it will be requested once an application is reviewed. This guidance may be subject to further modification.”
In practice: if neither parent is a U.S. citizen, expect to attest under penalty of perjury to facts that will disclose whether your child was born via surrogacy. This is the moment to repeat what I wrote in August, because it has only become more important: be completely honest in every representation to the government. Even where the underlying facts are entirely lawful, a misstatement is an independent ground for denial and can expose you to federal criminal liability. There is no version of this where shading the truth helps your family.
Executive Order 14419: “Ending Birth Tourism”
The second order directs the Department of Homeland Security to:
“[Take] appropriate action to prevent the entry into the United States of, or the granting of any visa or other travel authorization to, any alien entering or attempting to enter the United States for the purpose of engaging in birth tourism; revoking the visa or travel authorization and permanently barring entry of any alien who enters or attempts to enter the United States for the purpose of engaging in birth tourism; denial of entry to, or removal of, any alien who previously engaged or plans to engage in birth tourism; or other appropriate action against entities, organizations, or individuals, within or outside of the United States, responsible for facilitating or enabling birth tourism in any manner.”
“Birth tourism” is defined as:
“(a) the entry of any foreign national into the United States via a nonimmigrant visa for the purpose of giving birth on American soil; or
(b) any effort by any foreign national to facilitate the entry of any foreign national into the United States via a nonimmigrant visa for the purpose of giving birth on American soil.”
Exec. Order No. 14,419, 91 Fed. Reg. 51993 (Aug. 11, 2026).
As I noted in August, this order never mentions surrogacy, and the phrase “for the purpose of giving birth on American soil” is undefined. In a typical U.S. surrogacy arrangement, it is the gestational carrier — a U.S. resident — who gives birth; the intended parents travel here to receive and care for their child. There are strong arguments the order cannot reach non-pregnant intended parents. But until agencies or courts say so definitively, the prudent course is to plan for the worst case: assume that intended parents traveling for surrogacy-related purposes could face denied entry, visa revocation, or removal, and prepare your documentation accordingly — return travel plans, evidence of ties to your home country, and a clear, truthful account of your journey.
On the Ground: A Task Force and 600 Revoked Visas
Enforcement is no longer hypothetical. The government has established a Task Force to End Birth Tourism, which reports having already revoked approximately 600 visas. Whatever the ultimate outcome in the courts, the administrative machinery behind these orders is operating today, which is exactly why the practical planning steps from my August post matter now more than ever.
What You Should Do Now
- Do not delay passport applications. If your child has been born or is due soon, apply promptly and keep a complete documentary record.
- Tell the truth, always. The attestation regime makes honesty a legal necessity, not just a moral one.
- Know where you fit. Your protection, or lack of it, depends on your and your co-parent’s immigration status, the structure of your arrangement, and your travel plans.
- Keep watching with us. The New Hampshire case, the merits phase in Maryland, further agency guidance, and a possible return to the Supreme Court could each shift the landscape quickly.
The Supreme Court’s June ruling remains the law, and courts have now stepped in twice to check executive overreach on this issue. But between rulings, families are left navigating shifting administrative rules — and that is where careful planning and experienced counsel matter most.
If you are an intended parent with questions about how any of this affects your journey, please contact our office.
This post is for informational purposes only and does not constitute legal advice. This area of law is moving quickly; consult your attorney about your specific circumstances before acting.
