Updates for International Intended Parents Pursuing Surrogacy Regarding the August 6, 2026 Executive Order
Updated: Sep 10
Where Things Stand
Updated September 10, 2026: State Department Publishes Proposed Passport Implementation Plan
On September 4, 2026, the U.S. Department of State published a proposed Implementation Plan addressing passport processing under Executive Order 14418. The proposed plan includes procedures for passport acceptance agents and passport agency staff and expressly addresses circumstances involving a commercial transaction with a surrogate present in the United States to give birth.
The proposed procedures would require additional information concerning the parents' citizenship or immigration status in certain circumstances. Where neither parent is a U.S. citizen, the proposed plan would require each parent to provide an attestation concerning whether either parent meets specified conditions under the Executive Order.
The State Department describes the document as a proposed Implementation Plan and states that it may be modified further. Its implementation and application also remain subject to applicable court orders and ongoing litigation.
For international intended parents pursuing U.S. surrogacy, this development provides greater visibility into how the Department proposes to operationalize the Executive Order at the passport stage. However, it should not be interpreted as a final determination of citizenship or as legal advice regarding any individual family's circumstances.
Families should obtain individualized advice from qualified U.S. legal counsel regarding citizenship, parentage, passport documentation, and international travel.
Updated September 5, 2026 — Federal Agency Implementation Begins
Federal agencies have begun issuing implementation measures addressing certain provisions of Executive Order 14418. At that time, however, specific implementation guidance concerning the Order's surrogacy-related commercial-transaction provision had not yet been publicly identified.
The legal landscape remained subject to the September 2 preliminary injunction and ongoing litigation.
Updated September 2, 2026 — Federal court issues preliminary injunction
On September 2, a federal court issued a preliminary injunction blocking enforcement of the August 6 Executive Order for the certified class in the pending litigation. The court concluded that the citizenship protections recognized by the Supreme Court’s June 30, 2026 decision in Trump v. Barbara apply to the children covered by the class.
The injunction prevents federal agencies from taking actions to deny or interfere with the citizenship of children covered by the court’s order. The court did not prevent federal agencies from continuing to prepare implementation guidance concerning the Executive Order. (Reuters)
The ruling is subject to further proceedings and potential appeal, and the precise scope of the certified class and the injunction should be reviewed with qualified legal counsel.
September 1–2, 2026 — Proposed passport procedures reported
Separately, the U.S. Department of State has reportedly been developing draft procedures that would require parents or legal guardians applying for a passport for a child to provide information and documentation concerning their own U.S. citizenship or immigration status. The reported draft would use that information in determining whether the child falls within the categories addressed by Executive Order 14418. (Reuters)
These passport procedures have been reported as a proposal or draft and should not be understood as a currently effective change to passport requirements. As of September 2, formal implementation guidance specifically addressing Executive Order 14418 had not been published in the Federal Register Public Inspection materials. (Federal Register)
What this means for international intended parents
For families pursuing surrogacy in the United States, these developments underscore the importance of obtaining individualized legal advice regarding citizenship, parentage, passport documentation, and travel arrangements.
The September 2 preliminary injunction is an important development that currently limits enforcement of the August 6 Executive Order for the class covered by the court’s order. However, litigation remains ongoing, the administration may appeal, and administrative guidance may continue to be developed.
IMA ART continues to monitor developments closely and recommends that international intended parents consult qualified U.S. legal counsel regarding their individual circumstances.
August 29, 2026 Update:
On August 28, 2026, a federal judge in Maryland declined to immediately block the August 6 Executive Order while considering a request from immigrant-rights organizations challenging the administration’s new birthright-citizenship policy.
The court allowed the plaintiffs to amend their existing lawsuit to specifically address the August 6 Executive Order and set an expedited schedule for further proceedings.
The judge also raised questions regarding the legal basis for the new order in light of the Supreme Court’s June 2026 decision concerning birthright citizenship.
The August 6 Executive Order remains in effect, and the court has not yet made a final determination regarding the validity or application of its provisions concerning certain commercial surrogacy arrangements.
The Order directs relevant agencies to issue implementation guidance within 30 days of August 6. As of August 29, 2026, implementation guidance has not been published.
August 19, 2026 Update: Where Things Stand
The August 6 Executive Order directs federal agencies not to issue documents recognizing U.S. citizenship, or to accept certain documents purporting to recognize U.S. citizenship, for specified categories of children born in the United States when neither parent is a U.S. citizen. One of those categories expressly addresses certain commercial transactions involving a surrogate present in the United States.
The Order directs the relevant agencies to issue implementation guidance within 30 days. As of August 19, 2026, the implementation guidance contemplated by the Order had not yet been published.
The situation remains subject to further government guidance and judicial developments.
For families building their families through U.S. surrogacy, these developments raise important questions about citizenship, documentation, immigration, and the child's ability to obtain appropriate travel documentation after birth.
August 17, 2026
For international intended parents considering or currently pursuing gestational surrogacy in the United States, the legal landscape changed on August 6, 2026.
What did the August 6 Executive Order say?
Executive Order 14418, titled “Continuing to Protect the Meaning and Value of American Citizenship,” directs federal agencies not to issue documents recognizing U.S. citizenship in certain circumstances involving children born in the United States when neither parent is a U.S. citizen.
Among the circumstances identified by the Order is where a parent has engaged in a commercial transaction involving a surrogate who is present in the United States or a U.S. territory to give birth.
The Order also addresses other categories, including certain children of foreign-government employees and persons the Order characterizes as “alien enemies.”
The Order directs federal agencies to issue public guidance regarding implementation within 30 days.
This is important because the Executive Order itself is not the same thing as a final judicial determination of the constitutional status of every child born through surrogacy in the United States.
Does this mean that babies born through U.S. surrogacy will no longer be U.S. citizens?
No such blanket rule is currently in effect.
The August 6 Executive Order directs federal agencies to withhold recognition of U.S. citizenship in certain circumstances, including a specified category involving a commercial transaction with a surrogate present in the United States when neither parent is a U.S. citizen.
The legal challenges argue, among other things, that the Executive Order cannot create new exceptions to birthright citizenship beyond those recognized under the Constitution and applicable Supreme Court precedent.
Accordingly, it would be premature to tell an international intended parent either that a child born through U.S. surrogacy will definitely receive U.S. citizenship or that such a child will definitely be denied citizenship.
The ultimate outcome will depend on further government guidance, judicial decisions, and the specific circumstances of the family.
Surrogacy, parentage, citizenship and passports are separate issues
It is important not to treat these issues as interchangeable.
A child may have a U.S. birth certificate establishing the circumstances of the birth and legal parentage may be established through the applicable state-law process. These documents do not, by themselves, answer every federal citizenship or passport question.
Similarly, a family's ability to establish the child's nationality under the law of the parents' home country is a separate matter from whether the United States recognizes the child as a U.S. citizen.
For international intended parents, the appropriate legal analysis may therefore involve multiple jurisdictions and multiple areas of law.
What should international intended parents do now?
The appropriate response is not necessarily to abandon a U.S. surrogacy journey.
Instead, international families should understand where they are in the reproductive process and obtain individualized legal advice before taking the next significant step.
The appropriate approach may differ depending on whether a family:
is considering U.S. surrogacy but has not yet created embryos;
has created embryos but has not yet transferred one to a gestational carrier;
has a gestational carrier who is already pregnant; or
is approaching the child's birth.
For families who have not yet transferred an embryo, the current uncertainty may provide an opportunity to obtain legal advice and evaluate the anticipated citizenship, parentage and travel-documentation pathway before proceeding.
For families whose gestational carrier is already pregnant, the focus may be on understanding the anticipated documentation pathway at birth and identifying any additional legal or consular steps that should be addressed in advance.
Because the August 6 citizenship order has not yet been implemented and remains subject to litigation, families should avoid making irreversible decisions based solely on assumptions about how the order will ultimately be interpreted.
Instead, they should monitor developments with qualified counsel and reassess their circumstances as additional guidance becomes available.
What does this mean for families already in a surrogacy journey?
There is no single answer.
A family with a surrogate who is already pregnant is in a different position from a family that has not yet created embryos or identified a gestational carrier.
For a pregnancy already underway, the appropriate response may be to review the anticipated birth, parentage, citizenship and travel-documentation pathway with counsel and the relevant authorities as early as possible.
For a family that has not yet transferred an embryo, there may be an opportunity to obtain additional legal advice before taking the next irreversible step.
The appropriate course will depend on the family's nationality, immigration circumstances, genetic and intended-parent relationships, location of the gestational carrier, applicable state law, and the law of the family's home country.
What IMA ART recommends
At IMA ART, we believe international fertility journeys require more than coordination of medical and surrogacy services.
They require careful coordination across medical, legal, immigration, insurance, financial and cross-border considerations.
The August 6 Executive Orders reinforce the importance of understanding the entire journey before proceeding.
The legal landscape is evolving
The August 6 Orders are recent, implementing guidance is expected, and litigation is underway.
For that reason, information published today should not be treated as a prediction of how the law will ultimately be interpreted or enforced.
International intended parents should obtain individualized legal advice based on their own nationality, immigration status, parentage structure and reproductive circumstances.
IMA ART does not provide legal or immigration advice and does not guarantee U.S. citizenship, passport issuance, or any particular immigration or nationality outcome.
Disclaimer:
International intended parents should consult with qualified attorneys in their home country regarding the recognition of parentage and citizenship issues, and when appropriate, seek advice from a U.S. immigration attorney regarding the potential impact of recent federal policies and executive orders that could affect surrogacy.
