Navigating the August 6, 2026 Executive Orders: FAQs for International Intended Parents Pursuing U.S. Surrogacy
Navigating international surrogacy involves both deep hope and meticulous legal planning.
Recent regulatory shifts under the August 6, 2026 Executive Orders have created understandable concern and questions for foreign intended parents pursuing or planning surrogacy in the United States.
At Foster + Bloom, we understand the emotional investment and dedication behind your family-building journey.
Our commitment is to provide clear, actionable legal clarity so you can navigate these evolving changes with confidence.
Summary: What Changed on August 6, 2026?
President Trump signed two Executive Orders (EOs) targeting birth tourism and citizenship documentation rules.
The first, titled “Ending Birth Tourism,” directs the Department of State and Department of Homeland Security to restrict non-immigrant visas (including B1/B2 visitor visas and ESTAs) when entry is intended for giving birth. It outlines enforcement measures such as visa denials, entry revocations, and actions against facilitators.
The second order, “Continuing to Protect the Meaning and Value of American Citizenship,” instructs federal agencies not to issue official documents recognizing U.S. citizenship for specific categories of children born in the U.S. when neither parent is a citizen.
This explicitly includes commercial surrogacy arrangements involving foreign intended parents.
These directives followed the administration’s Supreme Court loss in Trump v. Barbara (June 30, 2026), where a 6–3 majority held that children born on U.S. soil to non-citizen parents are “subject to the jurisdiction” of the U.S. and are citizens at birth under the 14th Amendment.
The August 6 Executive Orders represent an attempt by the executive branch to target categories outside that specific ruling.
Navigating the FAQs: Answers for Foreign Intended Parents
Can foreign intended parents travel to the U.S. for the baby’s delivery?
MAYBE — Expect heightened scrutiny and planning requirements.
The “Ending Birth Tourism” order specifically targets individuals entering the U.S. to give birth.
Because intended parents are not the ones physically delivering the child, they fall outside the literal definition of birth tourism.
However, because both Executive Orders were issued together, border and consular officials may interpret them broadly. Intended parents should anticipate potential delays or additional questioning at consulates and border crossings.
- Honesty is non-negotiable. Always maintain complete transparency in all visa, ESTA, and entry matters. Misrepresenting the purpose of travel carries severe, lasting immigration consequences.
- Prepare a backup care plan. For pregnancies already underway, establish a legally enforceable U.S. contingency plan. Identify a trusted U.S.-based individual who can temporarily care for the child if your entry into the country is delayed. Legal advisors strongly recommend against appointing the surrogate for this role and advise thorough background screening for chosen caregivers.
- Seek dual legal counsel. Assisted Reproductive Technology (ART) law and immigration law are distinct fields. Families usually require both U.S. immigration counsel and legal representation in their home country.
Is a baby born in the U.S. to foreign IPs still a U.S. citizen?
YES — Under the U.S. Constitution, a child born on U.S. soil is a citizen at birth.
Under the Citizenship Clause of the 14th Amendment—reaffirmed by Trump v. Barbara—every child born in the United States and subject to its jurisdiction is a citizen at birth.
An Executive Order cannot rewrite the Constitution or override Supreme Court precedent.
The primary distinction lies between underlying citizenship and federal documentation.
The Executive Order instructs federal agencies not to recognize or issue documents proving citizenship for this category. While the child’s constitutional status remains intact, obtaining federal proof creates administrative friction. Legal experts expect this surrogacy restriction to be enjoined or struck down in court.
Can the baby still get a state birth certificate?
YES — Birth certificates are governed by state law, which remains unaffected.
Birth certificates and parentage orders fall under state vital records and family law, not federal executive authority.
The Executive Orders instruct federal departments regarding federal records; they do not impact state laws or local vital statistics offices.
A child born in a U.S. state will still be registered and granted a state birth certificate following standard state procedures, including any pre-birth or post-birth parentage orders naming the intended parents.
Can the baby get a U.S. passport?
PROBABLY — Litigation is underway, but intended parents should plan for initial delays.
Because a U.S. passport is federal documentation issued by the State Department, it falls directly within the scope of the citizenship Executive Order.
As written, federal agencies are directed not to issue passports for children born through commercial surrogacy to foreign intended parents.
| Pathway | What to Expect |
| Court Injunctions | High probability. Federal lawsuits (including actions filed in mid-August 2026) seek to enjoin enforcement. If blocked by a judge, the State Department must resume passport issuance. |
| Individual Litigation | Families may choose to file individual federal claims to establish citizenship documentation directly. |
| Federal Guidance | Clarifying rules expected from federal agencies over the coming weeks may refine how these rules are applied. |
Alternative Travel Documents:
Because U.S. passport processing may be delayed, intended parents should immediately consult legal counsel in their home country to explore securing a passport or emergency travel document through their native citizenship laws or any secondary citizenship held by either parent.
Actionable Steps for Intended Parents Right Now
- Consult specialized legal counsel: Connect with immigration and family formation attorneys in both the U.S. and your home country.
- Maintain complete transparency: Exercise absolute candor in all consular and border interactions.
- Draft a legally binding caregiver plan: Establish a vetted, U.S.-based temporary caregiver agreement for ongoing pregnancies.
- Plan for flexible travel schedules: Anticipate potential passport delays and prepare home-country document applications in parallel.
- Evaluate match timing carefully: If you are not yet pregnant or matched, discuss with your agency and attorney whether to briefly pause new contracts or embryo transfers until court rulings provide further clarity.
- Stay informed: Policy and litigation are moving rapidly. Continuously review updates with your legal team as court rulings develop.
How Foster + Bloom Protects Your Family-Building Journey
Building a family internationally requires more than general legal knowledge—it demands compassionate, forward-thinking representation tailored to your unique global circumstances.
Our team brings deep expertise in both Assisted Reproductive Technology (ART) law and U.S. immigration strategy.
Because immigration law is federally licensed, our attorneys can represent and guide foreign intended parents regardless of where your surrogate resides, or where in the world you currently call home.
Immigration + Surrogacy Attorneys
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Disclaimer: This article provides general legal information and does not constitute formal legal advice or create an attorney-client relationship. Legal outcomes depend heavily on specific facts, including the state of birth, parent nationality, and individual circumstances. Please consult qualified legal counsel for personalized guidance.