International Surrogacy after Executive Orders 14418 and 14419

We have tried to gather the most recent information regarding Executive Orders 14418 and 14419, both issued on August 6, 2026. The legal and administrative landscape remains fluid. International intended parents should continue to obtain current advice before making decisions concerning embryo transfer, travel, citizenship documentation, or departure from the United States after a child’s birth.

Executive Order 14418 — Citizenship and Commercial Surrogacy

Executive Order 14418, “Continuing to Protect the Meaning and Value of American Citizenship,” expressly identifies a commercial transaction with a surrogate present in the United States or a U.S. territory to give birth as a circumstance in which the Executive Branch is directed not to recognize birthright citizenship. The Order directs the Departments of State, Justice, Homeland Security, the Social Security Administration, and other agencies to conform their policies to the Order and requires executive agencies to issue public implementation guidance within 30 days of August 6, 2026.

The Order does not invalidate state surrogacy laws, gestational-carrier agreements, parentage orders, or state-issued birth certificates. Its principal immediate concern for international intended parents is federal recognition of the child’s citizenship and the issuance of federal documents, particularly a U.S. passport.

Current Litigation

In Barbara v. Trump, the ACLU and its partners filed an August 11 motion asking U.S. District Judge Joseph Laplante in New Hampshire to clarify or modify the existing class-wide preliminary injunction so that children affected by Executive Order 14418 remain protected. As of August 26, we have not identified a ruling by Judge Laplante on that motion. Families therefore should not assume that the commercial-surrogacy provision of Executive Order 14418 has itself been expressly enjoined.

A related birthright-citizenship class action, CASA, Inc. v. Trump, is also active again in the District of Maryland. On August 18, Judge Deborah Boardman permitted that litigation to proceed following the Supreme Court’s June 30 decision. These cases may provide additional guidance concerning whether and to what extent the administration may implement Executive Order 14418.

Executive Order 14419 — Birth Tourism and Entry to the United States

Executive Order 14419, “Ending Birth Tourism,” is directed principally at foreign nationals who enter the United States on nonimmigrant visas for the purpose of giving birth, as well as persons and organizations that facilitate birth tourism. The administration has begun active enforcement efforts, including a State Department Birth Tourism Prevention Task Force and visa revocations.

There is an important distinction for surrogacy clients. An intended parent who travels to the United States to visit a surrogate or attend the birth is not personally entering the country for the purpose of giving birth. Executive Order 14419 therefore does not fit that circumstance as directly as Executive Order 14418, which expressly refers to commercial surrogacy. Nevertheless, increased scrutiny at visa issuance and ports of entry is possible. Intended parents must be completely truthful about the purpose of their travel and should not attempt to conceal the surrogacy arrangement or the anticipated birth.

Immediate Planning Strategies

• Establish a Home-Country Citizenship Pathway: Do not assume that a child born through a U.S. commercial surrogacy arrangement will promptly receive a U.S. passport. Consult immigration or nationality counsel in the intended parents’ home country before birth to determine citizenship, birth-registration, and emergency travel-document procedures.

• Prepare for Federal Documentation Delays: Families should be financially and logistically prepared for a substantially longer post-birth stay if passport or citizenship documentation is delayed or denied.

• Create a Local Care Contingency: If a pregnancy is underway, consider arrangements with a trusted U.S.-based person who can assist with the newborn if intended parents encounter unexpected entry or travel difficulties. The appropriate legal arrangement should be discussed with counsel.

• Maintain Absolute Transparency: Visa applications, ESTA submissions, consular interviews, and communications with Customs and Border Protection must be truthful. Misrepresentation concerning the purpose of travel can have serious and potentially long-term immigration consequences.

• Preserve Documentation: Maintain complete copies of the gestational-carrier agreement, parentage orders, medical documentation, proof of payment of medical and surrogacy expenses, birth records, and communications with the relevant embassy or consulate.

• Consider Pausing New Embryo Transfers: For international clients who have not yet initiated a pregnancy, we continue to recommend serious consideration of a temporary pause until the federal courts address Executive Order 14418 and the responsible agencies issue implementation guidance.

Legal and Operational Realities

Current Recommendation

For pregnancies already underway, careful advance planning is essential. International intended parents should coordinate with U.S. reproductive counsel, immigration counsel in their home country, and their embassy or consulate well before the anticipated birth. They should be prepared for the possibility that a U.S. passport will not be immediately available and should have an alternative citizenship and travel-document strategy.

For international clients who have not yet initiated a pregnancy, our August 13 recommendation remains unchanged: we recommend a temporary pause in embryo transfers while awaiting further rulings in the pending federal litigation and the federal implementation guidance required by Executive Order 14418. The forthcoming agency guidance may materially affect how citizenship and passport applications involving commercial surrogacy will be adjudicated.

Most importantly, intended parents should be completely truthful in all dealings with U.S. consular and immigration officials. The law in this area is changing quickly, and families should obtain updated advice immediately before taking any significant step.

This memorandum will be updated after September 5, 2026, at which time agency guidelines are due pursuant to the terms of the August 6, 2026 EO’s.

Sources reviewed for this update include Executive Orders 14418 and 14419, the pending Barbara v. Trump litigation materials, and developments in CASA, Inc. v. Trump through August 26, 2026.