US Surrogacy Executive Orders: What It Means for Australians

Published 31 August 2026. Last updated 31 August 2026.

On Friday 7 August, Australian time, the White House issued two executive orders that bear directly on Australians pursuing surrogacy in the United States. One concerns whether the federal government will recognise US citizenship for certain children born on American soil. The other concerns who can be refused a visa, refused entry, or barred from the United States.

Taken together, they touch the two ends of the same journey: getting to the United States for the birth of your child, and bringing that child home afterwards.

Sarah Bevan held a briefing for clients and intended parents on Tuesday 11 August to work through what the orders say and what they mean in practice. This article sets out the legal position. If you have an arrangement underway and want to know what to do about it, what to do now, at every stage is the page you want.

One thing should be said clearly at the outset. Neither order settles anything yet. Federal agencies have not published their implementation guidance. Six weeks before the orders were signed, the United States Supreme Court reaffirmed the constitutional position on birthright citizenship. Legal challenges are already being prepared. Anyone telling you this is settled, in either direction, is going further than the material supports.

What did the two executive orders actually say?

Two orders were signed on 6 August 2026 in Washington, which was Friday afternoon in Australia.

The first is titled Continuing to Protect the Meaning and Value of American Citizenship. It directs federal departments and agencies not to issue documents recognising US citizenship for a person where neither of that person’s parents is a US citizen and one of several listed circumstances applies. The circumstance that matters here is where a parent engaged in a commercial transaction to purchase or access birthright citizenship, which the order describes as including a commercial transaction with a surrogate present in the United States.

In practical terms, the order works by trying to widen the exceptions to birthright citizenship rather than by abolishing it. Commercial surrogacy is referred to directly.

Agencies including the Department of State, the Department of Justice, the Department of Homeland Security and the Social Security Administration are required to publish public guidance within 30 days of the order, which puts that deadline at approximately 5 September 2026.

The second is titled Ending Birth Tourism. It defines birth tourism as the entry of a foreign national into the United States on a nonimmigrant visa for the purpose of giving birth on American soil, or any effort by a foreign national to facilitate such an entry. It directs the Department of State and the Department of Homeland Security to update their rules, policies and operational guidance, and authorises measures including refusing visas and travel authorisation, revoking visas, refusing admission, removal, permanent bars to entry, and action against entities, organisations and individuals who facilitate birth tourism. It permits exemptions on humanitarian grounds or where entry is in the national interest.

Notably, the second order does not mention surrogacy or assisted reproduction anywhere.

Will a baby born through US surrogacy still be a US citizen?

Nobody can tell you with certainty. The first order does not purport to change who is a citizen. It directs agencies not to issue documents recognising citizenship in defined cases. That is a meaningful distinction, and it is where much of the coming legal argument will sit.

The practical problem is that for a family standing in a hospital in Texas or California, the distinction is academic. If the State Department will not issue a passport, the baby cannot board a plane, whatever the underlying constitutional position turns out to be.

There is also a threshold question in the order’s own wording that has not been resolved. The direction applies only where neither parent of the child is a US citizen. In most American surrogacy arrangements the gestational carrier is a US citizen. Whether she is a “parent” for the purposes of this order, when US state law and the pre or post-birth order process (depending on the relevant State) are generally designed to establish that she is not, is a question the order does not answer. Agency guidance may answer it. Litigation may answer it. Right now it is open.

Does it matter which US state we are in?

No. These are federal executive orders and they apply across the United States. Choosing a different state does not avoid them.

This is worth stating plainly because it is a natural first question, and because state law differs so much in every other respect of US surrogacy that people reasonably assume it will differ here too.

Can we still travel to the United States?

On the face of the second order, an intended parent travelling to the United States is not doing the thing the order describes. Birth tourism is defined as a foreign national entering in order to give birth. An intended parent is not entering in order to give birth. The surrogate gives birth, and she is generally already in the United States.

The open question is the second limb, which covers any effort by a foreign national to facilitate another person’s entry for the purpose of giving birth. Whether that reaches intended parents, agencies or clinics is not clear from the text.

There are really two separate entry questions. The first is travel for embryo creation, egg retrieval or the provision of gametes. On a plain reading that is unlikely to be caught, though it is not free from doubt. The second is travel to be present for the birth and to collect your child, which is where the risk sits.

Our view is that the greater risk is not a formal policy excluding intended parents. It is the discretion the order hands to consular officers and border officials at a point when nobody on either side of the counter has settled guidance. An order that is ambiguous on its face tends to be applied broadly at the border, and that is a different kind of risk requiring a different kind of preparation.

Which of the two orders is the bigger problem?

The second one, and by some distance.

If the citizenship order were the only issue, there would be a workable answer. Families in other surrogacy destinations already deal with the absence of local citizenship for their child by remaining on shore and obtaining Australian citizenship by descent. It is slower, it is considerably more expensive, and it is far from ideal, but it is a known path. The great advantage of the United States until now has been that a US passport could be obtained quickly, allowing families to fly home and complete the Australian process from Australia.

The entry order has no equivalent workaround. If an intended parent cannot get into the United States when their child is born, there is currently no clear procedural fix available from Australia.

When did the orders take effect, and are they retrospective?

They took effect immediately, but both are subject to implementation provisions. The Citizenship order requires guidance by the relevant departments within 30 days of the order.

Whether they apply retrospectively is a genuinely open question. The citizenship order contains no retrospectivity clause in either direction. It does not say it applies only to future births, and it does not say it applies to existing arrangements. For anyone whose surrogate is already pregnant, the practical position is that the orders are in force now and there is no stated carve-out for arrangements already underway, although the guidance to be issued within 30 days (so by 5 September, US time) may make this clearer.

What else is still unclear?

What counts as a commercial transaction to purchase or access citizenship. Australian families do not enter US surrogacy arrangements to obtain American citizenship for their children. They do it because they cannot build their family another way. Whether the purpose of the arrangement matters to how the order is applied, or whether any compensated arrangement is caught regardless of purpose, is unresolved.

What the agencies actually do. Guidance is due by early September. Until it issues, the operational position is unknown, and the scope of these orders will be determined far more by that guidance than by the text itself.

How the orders sit with the Supreme Court. On 30 June 2026 the Supreme Court decided Trump v. Barbara, holding by six to three that the Fourteenth Amendment guarantees citizenship to nearly all people born in the United States regardless of their parents’ immigration status. That decision invalidated the administration’s earlier attempt. The new order is framed as consistent with the historical exceptions the decision left standing, and is best understood as an attempt to work within the narrow space that judgment left open. Whether a commercial surrogacy exception fits inside that space is contestable, and we expect it to be contested.

Will the orders be challenged?

Almost certainly, and important organisations like the ACLU are likely to be leading the charge.

The realistic hope for families caught mid-arrangement is that the citizenship order is stayed while it is litigated, which is what happened to the administration’s earlier birthright citizenship order before the Supreme Court ruled on it. A stay would suspend the order’s operation rather than resolve it, but it would remove the immediate problem for children being born in the meantime.

That is a hope rather than a plan. It should not be relied on in making decisions this month.

When will we know more?

The next fixed point is agency guidance, due by approximately 5 September 2026. That will tell us how the Department of State and the Department of Homeland Security intend to apply both orders, and it will matter far more than the text of the orders themselves.

Beyond that, the timing depends on litigation, which does not run to a schedule.

We will update this page as the position develops. If you would like to be told when it changes, contact us and we will let you know.

If you have an arrangement underway

The right next step depends entirely on where you are in the process, and the difference between stages is significant. A family whose surrogate is due in October is in a very different position from one still choosing an agency.

Surrogacy in the United States: what to do now, at every stage sets out what we would suggest at each point, including how a child comes home if a US passport is not available.

If your surrogate is already pregnant, please contact us without delay on 1300 007 235 or at mail@sbfamilylawyers.com.au. Sarah Bevan is an Accredited Family Law Specialist and President of Surrogacy Australia, and has practised exclusively in family and fertility law since 1999. Consultations are available by video and we act for clients across Australia and overseas.

This article is general information about a change in United States policy. It is not legal advice, and it is not advice on your situation. United States law is not our jurisdiction, and we work alongside your US attorney on the American aspects of your arrangement.