Updated: 17 August 2026
Before we start, an important disclosure.
Dozens of worried parents have written to me over the past few days. At the same time I started gathering everything I could from the best sources available.
Most of what you'll read here rests on the professional work of attorney Victoria Gelfand and her partners, Daphna Cohen Stow and Bat-Chen Greenblatt. They produced detailed update letters when the orders came out, and again after taking part in the emergency Town Hall of the Academy of Adoption and Assisted Reproduction Attorneys on 12 August. More than 500 professionals from U.S. fertility and immigration law were in that session.
I'm not an attorney, and this isn't legal advice. The analysis and the practical roadmap below lean heavily on the material they compiled, alongside other public documents I've read and what I hear from the ground. The credit for the legal thinking, and for laying out what parents should actually do, belongs to them. My job here was to take that work and put it into plain language, at eye level, for the people living it.
What happened: the background
If you started a surrogacy journey in the U.S. over the past year or two, you almost certainly saw the alarming question in intended-parent groups. Wait, did they cancel our babies' American citizenship?
Here's the background. In January 2025 an executive order was signed that tried to narrow birthright citizenship, the constitutional principle that anyone born on U.S. soil is a U.S. citizen. That principle is exactly why our babies, born to a surrogate in the U.S., receive an American passport within days and fly home with us instead of sitting at a consulate for months.
That order was never actually enforced. Courts blocked it again and again. But the uncertainty was stressful. Parents asked me whether to start a journey at all, whether to change states, whether to worry. I told everyone the same thing: no panic, yes monitoring.
Then on 30 June 2026 the decision came. In Trump v. Barbara, the Supreme Court ruled 6 to 3 that the order was unconstitutional, and struck it down for good. The Court was clear that U.S. jurisdiction covers every baby born in an American hospital. A private contract between adults, meaning foreign intended parents and an American surrogate, cannot remove a child from the state's sovereignty.
The Court held something else that matters later. The President cannot invent new exceptions to citizenship law on his own, without explicit authorisation from Congress.
That should have been the end of the story.
Where things stand today
On 6 August 2026 two new executive orders were signed. This time, unlike 2025, one of them names surrogacy explicitly.
First, what is actually happening
U.S. passports are still being issued as usual, at passport offices across the country. Nothing has stopped.
The orders exist on paper. No implementing regulations have been published, and nobody has run into them in the field yet. Nearly two weeks after signing, it still isn't clear when they'll apply, how, to whom, or whether at all.
That doesn't mean there's nothing to worry about. It means there's a wide gap between what an order says and what happens in practice. So far, in practice, nothing has changed.
What was signed
The first order, EO 14418, tells federal agencies not to issue documents recognising U.S. citizenship, passports included, for children born in the U.S. when neither parent is a U.S. citizen. Some categories have been excluded historically. This order added much broader ones, and children born through commercial surrogacy are among them.
The text describes a parent who "engaged in a commercial transaction with a surrogate to purchase or obtain access to birthright citizenship for the child." In other words, it tries to frame your journey as buying a passport.
The order never defines what counts as a commercial transaction. It also doesn't say how anyone is supposed to work out what the purpose of a process was. That's one of the reasons U.S. lawyers think it won't survive.
The second order, EO 14419, deals with birth tourism. It gives border officials and consulates the authority to refuse visas, revoke travel authorisations that already exist, or deny entry outright.
The second order probably isn't about you
This one is worth understanding properly, because it's reassuring.
It doesn't use the words surrogacy, surrogate or intended parents even once. It defines birth tourism as a foreign national entering the U.S. in order to give birth themselves on American soil, so the child gets citizenship.
You're not the one giving birth. On the plain language of the order, there's a strong argument that it simply doesn't apply to you.
One caveat. The two orders came out together, and border officers have been told to be extra alert. The argument is strong, but it's worth being ready for someone to read it more broadly.
What the orders don't touch
This is the part I most want you to read, because it covers most of the fears I've heard this week:
- The legality of surrogacy in the U.S. Unchanged. Nothing about the process became unlawful.
- Recognition of you as the parents. The parentage order comes from the state where your journey happens. These orders are about federal documents, and they don't reach this at all.
- The birth certificate. Issued by the state, not the federal government.
What is at risk: the U.S. passport and the Social Security number. Both are federal, and both are exactly what the order is aimed at.
The distinction everything rests on
Citizenship and proof of citizenship are two different things.
A baby born in the U.S. is an American citizen from the moment of birth. The Constitution says so, and the Supreme Court confirmed it less than two months ago. An executive order can't change that.
What this order tries to do is stop federal agencies from issuing the paper that proves it. The right and the proof of the right are separate questions. These orders reach only the second one, and so far only on paper.
The legal fight
On 11 August, the same organisations that beat the previous order filed again, this time against these two. Their argument is that after such an unambiguous Supreme Court ruling, the current attempt is neither lawful nor constitutional.
The assessment in the American legal community, including at the emergency session I mentioned, is that the petition has strong prospects. Congress never created an exception for commercial surrogacy, and the June ruling was decisive.
Until then, there's reasonable hope that things on the ground stay as they are.
Getting into the U.S.: the most important decision you'll make this month
This is where the real near-term risk sits, in my view. Not in your baby's citizenship. In whether you can be there for the birth.
There are two ways in, and right now the difference between them matters enormously.
A visitor visa, B1/B2, lets you stay up to six months per entry, and you can apply lawfully to extend it from inside the U.S. if something is delayed. The catch is the in-person interview at the embassy, where you'll be asked what you're coming for.
A visa waiver authorisation, called ESTA in the U.S. system, and only available if the country you live in is part of the Visa Waiver Program. It's a simple online form with no interview. Nothing in the questionnaire touches on surrogacy. The catch is that it's 90 days, and hard. You can't extend it and you can't change status from inside the U.S., under any circumstances. If the baby needs to stay in hospital, or paperwork drags, the clock keeps running. At day 91 you're out of status.
If your country isn't in the Visa Waiver Program, this route doesn't exist for you. A visitor visa is your only way in, so the interview section below applies to you directly. It also means the warning that follows isn't your risk. Yours is simpler, and it's the interview itself.
The warning that matters more than the rest
A formal visa refusal automatically and immediately cancels an existing ESTA.
Read that again.
Here's what it means in practice. Someone holds a valid ESTA. They decide, to be safe, to get a visitor visa as well. Surrogacy comes up in the interview. A cautious consular officer refuses. Now they have no visa, no ESTA, and no lawful way into the country. Weeks before the birth.
A move meant to be careful is the one that turns an uncertain situation into a disaster. If you take one thing from this post, take this.
The bottom line, depending on where you are
You already hold a valid B1/B2. Use it. Best and safest option there is.
No visa, but an approved ESTA or the ability to get one now. Travel on it. Don't try for a visa at the last minute.
No visa, and no visa waiver available from your country. You need a visitor visa, so book the interview early rather than late, and read the border section below carefully. It applies to the interview too.
You applied for an ESTA and the system refused you. This is the moment for an immigration attorney, not another attempt on your own.
Your birth is more than three or four months away. Wait. Don't file anything yet. Implementing regulations are expected in September, and there'll be a clearer picture then. Time is on your side.
At the border
Complete honesty. That's the iron rule.
If an officer asks you directly why you're travelling, answer truthfully and precisely. Don't say you're here on holiday, or visiting family. It'll be obvious anyway when you come back through that same border on your way out, holding a days-old baby.
A false statement at the border carries a permanent, lifetime bar from the United States. That's not a risk worth taking in any scenario.
At the same time: answer what you're asked, honestly and calmly. Don't expand past what's required. Don't volunteer anything nobody asked for. Don't answer a question that wasn't put to you.
A few practical things.
Bring paper. Two complete printed sets of your medical and legal file, one with each of you. Don't rely on your phone. If you get sent to different inspection lines, you won't have a device.
Think about moving your flight earlier if the birth is only weeks away, ahead of any stricter rules that might take shape.
Keep a low profile online. Don't post about your journey right now. There's no reason to leave digital traces that someone might go looking for.
Two suggestions for edge cases
Let me be clear about these two. They're for edge cases only and they sound dramatic. I'm including them so you can weigh them yourself, against your own tolerance for risk. Not because I think this is what will happen. Most people will never need either one.
Couples who are especially worried might consider arriving on separate flights. If the first one meets an inflexible officer, the second gets a fresh chance with a different one.
If you have older children, some advisers suggested leaving them at home, even if they're American citizens themselves. A long border interview with small children in tow is a lot of pressure. I know that's not an easy call to make.
A backup plan: your own country's route
Here's something worth knowing, and it's more reassuring than frightening.
This route isn't theoretical, and it wouldn't be the first time.
If a U.S. passport can't be issued for your baby, your own country's consulate in the U.S. may be able to issue travel documents instead. That depends on completing whatever legal process your country requires. During the pandemic, when American passports weren't being issued and many countries would only let people in on their own documents, dozens of families got home exactly this way.
How it works varies hugely from country to country. Some grant citizenship at birth to the child of a citizen parent. Others require registration. Some want proof of a genetic link. And in some countries a parent who was themselves born abroad doesn't pass citizenship on automatically at all, which catches families by surprise. Timelines run anywhere from weeks to months.
So find out now what your country asks for, in parallel with the American route, even if you never end up needing it. Starting early puts you in a much better position than starting once the passport is already stuck.
This matters especially if you're coming in on a visa waiver. Ninety days go fast.
If you get held up at the border
Sort out a local contact in the U.S. in advance. A friend or relative already there, who can collect the baby from the hospital and look after your child until you arrive. This needs to be done by court order, not on a handshake.
And don't assume your surrogate will take the baby home with her. That isn't her role, she didn't agree to it, and it can complicate the legal process badly.
If you're still early in the journey
If you haven't signed an agreement yet, or haven't done a transfer, the question isn't whether you can carry on. You can. The question is how much uncertainty you're willing to hold.
Some experts suggest waiting a few weeks for the regulations, to see the picture properly. Others think you should carry on as planned. Both positions are reasonable.
It's a personal call, and it depends on you rather than on headlines. Make it with your legal team.
The tip that still holds
This was true when everything was calm and it's true now. Keep organised copies of everything. The original birth certificate, and order several certified copies while you're at it. The U.S. parentage order. The passport.
Legal processes in the U.S. can always throw up a new headline. The best thing you can do is get your updates from your attorney and your agency, rather than from Facebook.
Finally
I'm not an attorney and this isn't legal advice, as I said at the top.
This is moving week to week. By the time you read it, a court may have ruled, or the regulations may be out. Check the update date at the top of the page.
What's certain: a baby born in the U.S. is a U.S. citizen. Surrogacy is legal. You are the parents. And even in the worst case, there's a way to bring your child home.
