Executive Order on Birthright Citizenship & Surrogacy: What You Should Know

Last updated: July 25, 2025

This page is for informational purposes only and is not legal advice. Please contact Klein Fertility Law for specific guidance regarding your situation.

In recent months, many intended parents have reached out to us with questions about how the new birthright citizenship executive order might affect children born through surrogacy in the United States. The law is currently being challenged in multiple courts, and recent rulings have temporarily blocked its enforcement nationwide. Below, we answer some of the most common questions we’ve received, based on the latest available information.

What is happening with the U.S. birthright citizenship executive order?

The executive order seeks to deny automatic U.S. citizenship to certain children born in the U.S. to parents who are not U.S. citizens or lawful residents. Multiple lawsuits have been filed across the country challenging its constitutionality.

What did the recent court rulings decide?

Two key decisions in July 2025 — Barbara v. Trump in New Hampshire and State of Washington v. Trump in the Ninth Circuit — currently block enforcement of the executive order nationwide. This means that, as of now, all children born in the U.S. are recognized as U.S. citizens.

Could this change?

Yes. The Trump administration has 60 days from July 10, 2025, to appeal the New Hampshire ruling, and appeals in other cases are expected. The issue may return to the U.S. Supreme Court in early 2026.

Does the executive order apply to gestational surrogacy?

It is unclear. The order’s language focuses on children born to parents in the U.S. illegally, which is typically not the case in gestational surrogacy. However, there is no definitive legal ruling yet, so the question remains unresolved.

What does this mean for KFL clients?

At this time, the law recognizes all children born in the U.S. as U.S. citizens. If you are pursuing or planning a surrogacy journey, we recommend staying informed and consulting with your attorney as your case progresses.

My surrogate is currently pregnant. Will my child be born a citizen?

Currently, all children born in the United States are U.S. citizens. This is due to recent Court rulings in Barbara v. Trump and State of Washington v. Trump, which have prevented the Trump administration’s birthright citizenship order from taking effect. We anticipate appeals by the Trump administration and expect this matter to be before the Supreme Court of the United States in early 2026. If the state of the law changes, we will provide an update.

I have not yet selected a surrogate. Should I limit my search to states that challenged the Trump administration’s executive order?

Your selection of a surrogate should focus solely on who will be a good match for your journey, without limiting candidates by geographic location, bearing in mind the laws of each state and how that may affect your match decision. We will keep you apprised of any changes in the legal landscape, as well as state-specific requirements and how to navigate them.

I live outside the United States. If my child is not born a citizen, will I be able to get him or her home?

Yes. In the event the Supreme Court of the United States upholds the constitutionality of the Trump administration’s birthright citizenship order (i.e., the order takes effect nationwide at some future date), you will still be able to get your child home; however, it may take a bit longer than anticipated. If your child is not a citizen, you will not be able to secure a United States passport and will have to go through the appropriate channels to obtain a passport and/or travel permissions for your child in your home country. We are happy to assist with information to help you through that process.

Important Reminder: The specifics of how this executive order could affect clients are not fully known. This information is current as of July 25, 2025, but the situation may change quickly.

Need Guidance?
Our attorneys are monitoring these cases closely and can advise you based on the latest developments. Please contact Klein Fertility Law with any questions.

Disclaimer: This post is for informational purposes only and is not legal advice. You should not rely solely on this information when making decisions about your surrogacy or family-building plans.

Timeline of Key Events

January 20, 2025: Executive Order Issued

President Trump signed Executive Order 14160, titled Protecting the Meaning and Value of American Citizenship, aiming to restrict birthright citizenship for children born in the U.S. to parents who are undocumented or hold only temporary legal status.

January 21–23, 2025: Legal Challenges Begin

Multiple lawsuits were filed immediately by the states of Washington, Arizona, Illinois, and Oregon, saying that the executive order violates the Fourteenth Amendment of the United States Constitution. By January 23, a federal judge in Seattle issued a temporary restraining order, calling the executive order “blatantly unconstitutional.”

February 5–19, 2025: Preliminary Injunctions Issued

In February, multiple federal courts across the country blocked enforcement of the executive order. Several rulings — including those in Maryland, Washington, New Hampshire, and New Jersey — issued preliminary injunctions, with some applying nationwide. These early decisions ensured that, at least temporarily, the executive order could not be enforced anywhere in the U.S.

April–May 2025: Supreme Court Consolidation & Oral Arguments

The Supreme Court granted review of the consolidated cases (CASA, Washington, and New Jersey) in April and heard oral arguments in May, focusing largely on the scope of injunctions rather than the merits of the order itself.

June 27, 2025: Supreme Court Decision on Injunction Scope

The Court ruled that district courts cannot issue nationwide injunctions unless the plaintiffs are part of the harm, limiting the scope of judicial relief, but did not resolve the core question of the order’s constitutionality.

July 10, 2025: New Hampshire Class-Wide Injunction

Judge Laplante in New Hampshire certified a class of current and future children who would be affected under the executive order and issued a preliminary injunction covering all of them.

July 23, 2025 – Ninth Circuit Upholds Nationwide Injunction

The Ninth Circuit Court of Appeals — by a 2–1 vote — affirmed that the district court did not abuse its discretion in issuing a nationwide preliminary injunction blocking enforcement of the executive order. The court reasoned that only a nationwide injunction could fully protect the states from the administrative and financial burden of enforcing new citizenship policies.

July 25, 2025 – Current Status (As of This Post)

As of this date, all children born in the U.S. are recognized as U.S. citizens, though appeals remain expected, and the issue may return to the Supreme Court in early 2026.

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