Birthright Citizenship and Surrogacy
Updated 1/23/25
The Executive Order described below has been temporarily blocked by a federal judge in the State of Washington. The suit was brought by the attorneys general of the States of Washington, Oregon, Arizona, and Illinois. This appears to mean that enforcement of the order will be paused for the time being, and beyond the 30 days originally outlined in the Order. Eighteen other states have filed a similar suit in federal court in Massachusetts. I assume the suit(s) will escalate to the Appeals Court level, and potentially the US Supreme Court as well.
Original Post (from 1/21/25):
On January 20, 2025, President Trump signed an executive order titled "Protecting the Meaning and Value of American Citizenship," aiming to end birthright citizenship for children born in the United States to parents who are neither U.S. citizens nor lawful permanent residents.
This action has been met with immediate legal challenges, and raises significant constitutional questions.
The Constitutional Basis for Birthright Citizenship
Birthright citizenship, enshrined in the 14th Amendment of the U.S. Constitution, guarantees that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The U.S. Supreme Court affirmed this interpretation in the landmark case United States v. Wong Kim Ark (1898), ruling that children born in the U.S. to foreign parents are U.S. citizens at birth.
The key language, “subject to the jurisdiction thereof,” has been understood to only exclude children born in the U.S. to foreign diplomats who are not under the legal jurisdiction of the United States. The Executive Order deigns to expand the meaning of this phrase to also exclude any child born to a non-citizen or non-permanent resident. In surrogacy, the person giving birth is, of course, not a legal parent. So, there is concern that international intended parents (who are not U.S. citizens) and their children may be impacted by the Executive Order.
Legal Challenges to the Executive Order
President Trump's executive order seeks to reinterpret the 14th Amendment's Citizenship Clause; however, legal experts argue that such a change cannot be accomplished through an executive order alone, as it directly contradicts the clear language of the Constitution and longstanding Supreme Court precedent. The American Civil Liberties Union (ACLU) has filed lawsuits challenging the order, asserting that the President lacks the authority to unilaterally alter constitutional rights. Related lawsuits filed by state attorneys general have also been filed. Thankfully, we can probably assume that enforcement of the order would be stayed (paused) during the course of litigation.
Why Enforcement Faces Significant Hurdles
Constitutional Constraints: The 14th Amendment's Citizenship Clause is explicit in its language. Altering this provision would require a constitutional amendment—a process demanding approval by two-thirds of both the House and Senate, followed by ratification from three-fourths of the state legislatures. An executive order does not possess the power to amend the Constitution.
Judicial Precedent: The Supreme Court's decision in United States v. Wong Kim Ark has stood for over a century, reinforcing the principle of birthright citizenship. Lower courts are bound by this precedent, and any attempt to enforce the executive order would likely be halted by injunctions, leading to protracted legal battles.
Impacts on Travel Documentation for International Intended Parents
Currently, children born in the United States through surrogacy arrangements—regardless of the nationality of the intended parents—are granted U.S. citizenship under the 14th Amendment. International intended parents are understandably concerned about the Executive Order, despite the inevitable legal hurdles to its enforcement.
If the executive order were to be enforced, it could disrupt ability for international intended parents to travel home with their children on the child’s U.S. passport. As things currently stand (before enforcement of the order), intended parents can easily obtain the child’s U.S. passport within weeks of the child’s birth, and proof of citizenship is not required. The Executive Order could conceivably halt or delay this process for international intended parents. In general, the child’s foreign citizenship process takes several months, meaning the parents’ home country may not be able to issue a passport for the child in a timely manner.
Alternate Options such as “Laissez-Passer” Travel Permits
For international intended parents, a laissez-passer travel permit could serve as an alternative to facilitate their child’s ability to travel home. Many international intended parents utilized this option during the Coronavirus pandemic, when U.S. passport agencies were closed or extremely limited.
The laissez-passer process and availability will vary country-by-country, and it is critical that intended parents seek legal advice about this option from counsel in their home countries. Additionally, intended parents should contact their home country’s embassy or consulate to obtain additional information: what documents are required, what are processing times, etc.
While a laissez-passer may provide a temporary solution, it is not equivalent to citizenship.
Final Thoughts
The executive order represents a significant policy shift, however its enforceability is highly questionable due to constitutional protections and established legal precedents. The order could significantly impact families relying on U.S. surrogacy arrangements, however the actual effects and enforcability are not known at this time. All intended parents should seek legal advice about their specific circumstances, and make plans and back-up plans well in advance of their child’s birth.
DISCLAIMER: This informational article is not intended to be formal legal advice. You are advised to seek independent counsel from all applicable jurisdictions (countries) regarding your matter.
