Birthright citizenship changes and US surrogacy: what UK and Swiss intended parents need to know

On 6 August 2026, President Trump enacted Executive Order, “Continuing to Protect the Meaning and Value of American Citizenship” (the Order), one of two Executive Orders seeking to restrict US birthright citizenship and end ‘birth tourism’, by which foreign nationals give birth in the US so that their children can acquire citizenship in the US simply by being born there.

The Order has implications for non-US intended parents of children born through surrogacy. It does not make surrogacy illegal, nor does it prevent the recognition of the intended parents of the child as the legal parents, but it does prohibit federal agencies from issuing or accepting documents that recognise the US citizenship of children born through surrogacy to non-US intended parents who have engaged in a commercial transaction with the surrogate. 

What does this mean for intended parents?

The US is a popular jurisdiction for surrogacy arrangements, and until now, a key benefit for non-US intended parents is the ability to get a US passport for the child on the basis of birthright citizenship, enabling the family to return home together. Losing this option creates a significant practical barrier to returning home. Intended parents may find it much more difficult to obtain a passport for their child depending on the laws of their country of nationality.

UK

Certain UK-national intended parents can obtain a UK passport for a child born through surrogacy overseas, but the process is likely to take some months. They will be required to provide evidence of the surrogate’s (and her husband’s) post-birth consent, genetic relationship, and how the parent’s UK nationality was acquired. A US court order recognising the intended parents’ legal parentage will be vital in most cases. There may be further delay in the time it will take to explain the circumstances and legal status of their child to Home Office staff before a UK passport is issued.

Switzerland

For Swiss national (or resident) intended parents, surrogacy is prohibited and there is no bespoke route to legal parentage. Intended parents may face an impossible situation: being unable to travel home with their child until legal parentage is established, which may take many months depending on the circumstances. Temporary travel documents can be considered albeit these are usually only issued in cases of extremis. Intended parents will be required to provide evidence of post-birth consent from the surrogate (and her husband), genetic relationship, confirmation of how legal parentage weas established in the child’s state of birth, civil status confirmations with respect to the surrogacy and a US post-birth court order.

What should intended parents do?

Planning is key. Intended parents who are already expecting should prepare to spend an extended period in the US. They should ensure they have appropriate accommodation and financial resources to support a longer stay, and they should make sure that their immigration status is suitable. All non-US intended parents should take specialist cross-border legal advice to explore options around this change in circumstances. 

For those who are considering commercial surrogacy in the US but who have not started their journey yet, perhaps the safest course of action is to pause their plans for the time being. 

The future is unclear 

The Order leaves many questions unanswered, including what is meant by commercial surrogacy. Undoubtedly this would cover arrangements where the surrogate receives direct compensation, but what about arrangements where the surrogate is paid only expenses, not compensation? Does the Order affect surrogacy arrangements entered into prior to the Order? It is unclear.

Given the judgement in Trump v Barbara overturning the previous Executive Order about birthright citizenship, there is a broader question of the compatibility of this Order with the US constitution, and no doubt both Executive Orders of 6 August will see legal challenges in the coming months. However, at least for now, the US will be less attractive to non-US intended parents as a jurisdiction for commercial surrogacy, and undoubtedly more expensive.