An overview for foreign citizens on U.S. birthright citizenship when using a gestational carrier for birth in the U.S.
Disclaimer
This is a general informational summary and overview of certain U.S. laws, and the opinions of Ember Fertility Center, P.C. This is not intended to provide you with any legal advice or intended to be a comprehensive summary of all applicable U.S. laws. SEE BELOW
On January 20, 2025, President Donald Trump issued an executive order intending to end birthright citizenship for certain children born in the United States. While it will probably be 2-5 years before this is settled in court, we are getting questions about these issues from some of our patients and potential patients who are not U.S. citizens.
Patients are confused about how this executive order may affect treatment for those considering a gestational carrier surrogacy in the U.S. A gestational carrier is a woman who carries a pregnancy and delivers a child for intended parents who have provided the embryo implanted in the carrier’s womb after in vitro fertilization (IVF).
For intended parents who are not U.S. citizens and are using a gestational carrier in the U.S., ensuring their child’s legal status is a top concern. Birthright citizenship – the principle that grants citizenship to all babies born on U.S. soil (with limited exceptions related to areas of U.S. jurisdiction) – has been a fundamental right under the 14th Amendment for over 150 years.
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14th Amendment protections include gestational surrogacy
Despite the executive order, legal experts and courts have strongly opposed efforts to limit birthright citizenship. The 14th Amendment of the U.S. Constitution that deals with birthright citizenship continues to protect children born in the U.S., including those born via gestational surrogacy – whether or not the gestational carrier is a U.S. citizen or legally in the country.
For intended parents providing the embryo, this means that their child is automatically a U.S. citizen at birth.
What is U.S. birthright citizenship and why does it matter?
U.S. birthright citizenship refers to the automatic granting of U.S. citizenship to anyone born on American soil, regardless of their parents’ nationality or immigration status. Many other countries such as Canada and Mexico also offer birthright citizenship. This policy has been enshrined in the U.S. Constitution since the 1868 ratification of the 14th Amendment, which states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
This constitutional right provides essential protections and benefits for children born in the U.S., including:
- The right to a U.S. passport and international mobility.
- Access to public education and social services.
- Eligibility for government programs and legal protections.
- A simplified process for parents to obtain legal residency or citizenship.
For families using a gestational carrier for birth in the U.S., birthright citizenship ensures that their child has lifelong security and opportunities as a U.S. citizen.
How does the new executive order try to change U.S. birthright citizenship
President Trump’s executive order attempts to redefine birthright citizenship by denying automatic citizenship for babies born under these two circumstances included in the order:
1. When that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
2.“When that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
This policy raised concerns for international parents using a gestational carrier for birth in the U.S., as it indicates that babies born via gestational carriers might not automatically receive U.S. citizenship. However, legal experts and civil rights groups immediately challenged the order, arguing that it contradicts over a century of legal precedent.
Federal courts push back against attempted birthright changes
Federal courts have consistently blocked the executive order preventing it from being enforced. The legal consensus remains that birthright citizenship is a constitutional right that cannot be altered by executive action alone. Several federal courts have ruled against the executive order. In February 2025, the 4th U.S. Circuit Court of Appeals upheld a nationwide injunction, reinforcing that:
- The 14th Amendment guarantees citizenship to children born in the U.S., regardless of parental status.
- The executive order contradicts longstanding Supreme Court rulings.
- Changing birthright citizenship would require a constitutional amendment, not a presidential executive order.
Legal scholars widely believe that these challenges will prevent any changes from taking effect. This is a moving legal target, with the Supreme Court entertaining challenges to the injunction brought by the president in March. Currently, birthright citizenship remains intact including for babies born via gestational surrogacy.
Other benefits of using a gestational carrier for birth in the U.S.
Aside from birthright citizenship, choosing a gestational carrier for birth in the U.S. offers the following significant advantages for intended parents.
Legal protections and clear surrogacy laws
In the U.S., each state regulates gestational carrier and surrogacy laws. While some states restrict it, others are very supportive. California surrogacy laws are very supportive of this third-party option for family building, providing clear rights and protections for the parties involved. This makes Ember Fertility in Laguna Hills, CA, an excellent option for non-U.S. citizens seeking a gestational carrier birth in the U.S.
Surrogacy in other countries can be illegal and difficult
Each country has different laws and regulations on using a gestational carrier. These are often more restrictive than in the U.S., making it complex and challenging due to legal and logistic obstacles and lack of clarity. For example, surrogacy is illegal in China, where intended parents often turn to underground providers for gestational carrier surrogacy.
High-quality medical care
Ember offers world-class fertility treatments such as IVF and intrauterine insemination (IUI). In addition, the U.S. offers excellent prenatal care and maternity hospitals. Intended parents benefit from advanced medical technology and experienced healthcare professionals, ensuring the best possible outcomes for both the surrogate and baby.
Ethical and transparent surrogacy practices
U.S. surrogacy agencies and clinics operate under strict ethical guidelines, ensuring that gestational carriers are well-compensated, medically screened and fully supported throughout the process. Intended parents can have peace of mind knowing they are working within a well-regulated system.
Pathways to citizenship for parents
For international parents, having a U.S. citizen child can provide them with pathways to residency or citizenship. While this process is not automatic, U.S. citizen children can sponsor their parents for permanent residency once they reach adulthood.
Ember Fertility: experts in gestational carrier parenthood
- Dr. William Freije has considerable expertise in gestational carrier third-party reproduction.
- His skill and experience in fertility treatments such as IVF, embryo freezing and embryo preimplantation genetic testing enhance his successful care for all parties involved in a gestational carrier birth.
- Our Lab Director Dr. Avisa Asemi is closely involved in many steps of gestational carrier pregnancy and has more than 20 years of experience as a board-certified lab director, scientific director, team leader and senior embryologist.
- In addition to the expertise of these Ember leaders, our clinical staff is highly experienced in this third-party path to parenthood, including the emotional aspects of patient support.
Should intended parents be concerned about future changes to birthright law?
While political discussions about birthright citizenship including the recent executive order continue, Ember’s attorneys, other experts on surrogacy law and various courts say that legal protections to retain it remain strong. Any significant change to the current system would require a constitutional amendment, which is extremely difficult to pass and involves a long legal process.
For intended parents without U.S. citizenship considering a gestational carrier birth in the U.S. with Ember, we emphasize that the current legal landscape strongly protects birthright citizenship. Children born in the U.S. – including those born via gestational carriers no matter their citizenship – are U.S. citizens at birth.
Choosing a U.S. gestational carrier not only provides access to high-quality medical care and legal protections but also ensures that your child will have the benefits and security of U.S. citizenship. For families worldwide, this remains a stable and legally sound option for building a family through surrogacy.
Ember is here to help navigate your U.S. gestational surrogacy options. Contact us today to learn more.
Call or text us at 949-Mom-Baby (949-666-2229).
Disclaimer
The summary provided here is not intended to provide you with any legal advice or intended to be a comprehensive summary of all applicable U.S. laws. U.S. laws are constantly changing and evolving, and the topics discussed in this article are presently being challenged by President Trump’s recent executive orders and pending court cases, so please be advised that this summary may not be current when you read it. Because every individual’s circumstances are unique, readers are strongly encouraged to consult with qualified legal counsel to obtain advice tailored to their specific situation and to ensure they are relying on up-to-date and relevant legal information. As per our Website Terms & Conditions of Use, the information provided on this website and in this article are for general informational purposes only and do not constitute legal advice.