Why birthright citizenship draws foreign parents to U.S. surrogacy

On June 30, the Supreme Court struck down President Trump’s executive order attempting to end birthright citizenship, ruling 6-3 in Trump v. Barbara that children born in the United States to parents unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment.

Chief Justice John Roberts wrote the majority opinion, joined by Justices Kagan, Sotomayor, Barrett and Jackson, while Justices Thomas, Alito and Gorsuch dissented and Kavanaugh concurred only in the result.

For most Americans, the ruling was a story about immigration policy. For the international surrogacy industry, it was more of a reprieve. Foreign intended parents who work with American surrogates had spent a year and a half watching a legal fight that, while never aimed at them directly, threatened to complicate one of the main reasons they chose the United States in the first place.

The U.S. is the only country pairing legal paid surrogacy with automatic citizenship

Commercial surrogacy is illegal or heavily restricted across most of the world. Germany, along with more than a dozen other EU countries, bans it outright. China prohibits it entirely. France, much of Scandinavia, and most of Asia either ban paid arrangements or refuse to recognize the resulting parentage. Only a handful of countries allow paid surrogacy at all, and the United States is one of a short list that includes India, Thailand, Ukraine, and Mexico.

What sets America apart within that group is the Fourteenth Amendment. A baby born to a surrogate in San Diego or Sacramento automatically becomes a U.S. citizen, regardless of the intended parents’ nationality, immigration status, or genetic connection to the child, because the State Department’s own guidance states that citizenship depends on where the birth occurs rather than who the parents are.

States like California, New York, and Washington go a step further, using parentage laws that list intended parents directly on the birth certificate before the baby is even born.

That combination, legal paid surrogacy plus a constitutional citizenship guarantee, does not exist anywhere else. It is also expensive. A full surrogacy journey in the U.S. typically runs from $120,000 to $180,000 once egg donation, IVF, legal fees, and the surrogate’s compensation are included, several multiples of what the same process costs in Mexico or Colombia.

China’s surrogacy ban is quietly reshaping who uses American clinics

The clearest driver of demand is China, where commercial surrogacy has been illegal for years.

A 2024 study in the journal Fertility and Sterility, drawn from federal fertility clinic data collected between 2014 and 2020, found that the number of surrogacy cycles initiated by international intended parents in the U.S. rose substantially over that period, with Chinese nationals making up the largest single group.

China’s demographic slide has only sharpened the pull. Facing a shrinking birth rate, some provinces have loosened rules that once penalized unmarried parents, but commercial surrogacy itself remains off limits at home, so families who can afford it look abroad instead.

The U.S. also draws a meaningfully different group of clients for reasons unrelated to citizenship logistics. LGBTQ+ couples and single parents, who are barred from surrogacy or from having both parents recognized in much of Europe and Asia, choose American clinics because state laws in places like California explicitly protect their parental rights.

Critics describe a citizenship marketplace, though the numbers behind that claim are thin

Not everyone views this as a benign side effect of American law. Conservative groups, including the Heritage Foundation, have pushed for Congress to ban international commercial surrogacy outright, arguing that foreign nationals, particularly from China, are using it to secure citizenship for children who will be raised with little connection to the U.S.

Senator Rick Scott introduced legislation in November aimed at restricting foreign access to U.S. surrogacy on national security grounds, and the Justice Department said after the ruling that it intended to prioritize prosecuting birth tourism schemes.

The trouble with that narrative is how little hard data supports it. The State Department does not track birth tourism at all, and when Chief Justice Roberts asked Solicitor General John Sauer directly how large the problem actually is, Sauer told the Court no one knows for sure.

The most expansive estimate, built from Census Bureau data, puts birth tourism at roughly 26,000 births a year, a small fraction of the 3.5 million annual U.S. births overall, and that figure conflates general birth tourism with the much narrower category of paid surrogacy specifically.

Separately, CDC figures recorded fewer than 10,000 U.S. births to foreign residents in 2024, a figure that includes tourism, work travel, and surrogacy without distinguishing among them.

The ruling closes one debate and leaves a narrower one open

For international intended parents already mid-journey, the practical effect of Trump v. Barbara is straightforward. Passports and citizenship documentation for babies born through U.S. surrogacy will continue to be processed exactly as before the executive order, and the two-year window of legal uncertainty that opened when the order was first signed has closed.

What has not closed is the political argument underneath it. Kavanaugh’s opinion explicitly noted that Congress retains the power to legislate new, narrower exceptions to birthright citizenship even though the Constitution itself does not permit the president to create them by decree, which is exactly the opening that Scott’s bill and similar proposals are aiming for.

The fight over whether foreign nationals should be able to access American surrogacy at all, as distinct from whether their children become citizens once born, is likely to move from the courts to Congress next.

For the families in the middle of that debate, the calculation has not really changed. The U.S. remains the only place in the world where a paid, legally protected surrogacy arrangement comes with a constitutional guarantee, and for many international parents, that guarantee was never the deciding factor. It was the reason surrogacy was possible for them at all.

Disclaimer – This list is solely the author’s opinion based on research and publicly available information. It is not intended to be professional advice.

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