Surrogacy in the United States: what to do now, at every stage

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Surrogacy in the United States: what to do now, at every stage

US Surrogacy, what to do - SB Family Lawyer Sydney

Published 31 August 2026. Last updated 31 August 2026.

Two executive orders issued in Washington on 6 August 2026 have changed the position for Australians with surrogacy arrangements in the United States. What the orders say, and what remains unresolved, is set out separately.

This page is about what to do. What we would suggest depends almost entirely on where you are in your journey, and the difference between stages is significant.

Nothing here is advice on your situation. If your surrogate is already pregnant, please contact us without delay rather than reading to the end.

Find your stage:

 

Your surrogate is in the second half of the second trimester, or later

You are the most affected group, and this is urgent. Please contact us now on 1300 007 235 or at mail@sbfamilylawyers.com.au. Sarah has set aside time for people in this position.

Three things, in this order.

Contact your agency first. They will have been dealing with this since Friday and will know how their other arrangements are being handled. Ask them directly what happens if a passport application for your child is refused or delayed, and what their contingency is.

Then speak to both of your lawyers, your Australian lawyer and your US attorney. The American aspects are for your US attorney. What happens on the Australian side, including how your child comes home and how parentage is established here, is for us. If you do not have a US attorney, we have contacts in the United States and can put you in touch directly.

Then get your documentation in order, particularly anything establishing the genetic and legal relationship between you and your child. If a US passport is not available, that documentation becomes the basis of the Australian route home, and gathering it late is what causes delay.

There is one further point worth knowing. Australia has a strong track record in assisting its citizens when surrogacy arrangements have been disrupted overseas, including Thailand and India in the early 2010s and Ukraine at the start of the war. It is to be hoped that history repeats. That is not something you can rely on in planning, but it is a reason not to assume the worst outcome is the only outcome.

 

Your surrogate is in the first trimester or early second

You have a little time, and time is genuinely useful here.

Agency guidance from the US departments is due by early September, and legal challenges are being prepared. A great deal could look different in a month, in either direction. You are far enough from the birth that you are not making decisions today that cannot be revisited.

Use the time rather than simply waiting it out. Speak to your agency, understand what their position is, and begin assembling documentation. If you have not already spoken to an Australian lawyer about the process after the birth, this is the point to do it, because the Australian steps take longer than most people expect and they are much easier to start early.

 

You are matched and a transfer is scheduled

This is more urgent than it may feel, because a transfer is difficult to undo.

If a transfer is scheduled, or is likely within the next month or so, it is essential that you fully understand your situation before proceeding. It may be that you need to consider holding off on the transfer.

The decision is not only a legal one. It is financial and contractual, and it turns on what your agreements say about delay, suspension and withdrawal. Please contact us before the transfer date rather than after it.

 

You are signed up with an agency and at embryo creation stage

If you have paid a deposit, are not yet matched, and are at embryo creation or a similar stage, our suggestion is to pause. At least a month initially, and possibly longer.

The specific thing to wait for is clarity on whether intended parents can enter the United States, which is the question that matters most and the one the orders leave least clear. It would be a difficult position to have completed embryo creation and matched with a surrogate, only to find that entry for the birth is the obstacle.

Pausing is not the same as stopping. If the September guidance is reassuring, very little is lost. If it is not, a great deal is saved.

 

You are still considering the United States

You have the most room, and the most real choice.

If you are able to wait and see how this unfolds, do so. That is the straightforward answer for anyone without a pressing timeline.

If you cannot wait, because of age, medical timing or other circumstances, then it is worth looking seriously at other destinations. We can go through the options and the trade-offs of each with you.

One caution, and it is an important one. If the United States effectively closes to foreign intended parents, that demand does not disappear. It moves. Every other established destination will come under strain, and destinations that become oversubscribed are historically where problems begin. See should we switch to another country below before making that decision.

If there is no US passport, how does our child come home?

Through Australian citizenship by descent. It is the route Australian families already use in most other surrogacy destinations, and it works. However, it is significantly slower than travelling home on your baby’s US passport.

That is the whole difficulty. Until now the great advantage of the United States was that a US passport could be obtained quickly, letting families fly home within weeks and complete the Australian process from Australia, surrounded by their own support. The alternative is remaining in the United States for much longer, paying for accommodation in one of the most expensive parts of an already expensive process.

Three things make it go faster, and all three are worth starting now rather than after the birth:

  • Clear evidence of the genetic and legal relationship between you and your child
  • Complete documentation from the arrangement itself
  • Australian advice from someone who has done it before, so nothing is submitted incorrectly and returned

 

The problem of how long you are allowed to stay

If Australian citizenship by descent takes months, and your permission to be in the United States is shorter than that, the arithmetic does not work.

An intended parent entering the United States on a visa waiver is generally admitted for a limited period (typically it is 90 days). If your child cannot travel until Australian citizenship by descent is granted, and that takes longer than the time you are permitted to remain, you face a second problem on top of the first: your own lawful presence expires while you are waiting for your child’s documents.

This is not a theoretical concern and it is not addressed anywhere in either executive order. If you are travelling to the United States for a birth in the coming months, it needs to be part of your planning and it needs specific advice, both from us and from your US attorney.

 

Can we enter the United States without declaring the purpose of our trip?

No. Entering a country on a basis that does not reflect your actual purpose exposes you to considerably greater risk than entering on a genuine one. The potential consequences can be significant, and those consequences would arrive at the worst possible moment, which is when you are trying to reach your newborn child.

This is a question for your US attorney, who can advise on the American position. What we would say from the Australian side is that the risk is not worth it, and that a family separated from their child at a US border is in a far worse position than one that delayed.

 

Should we switch to another country?

Perhaps, but not quickly, and not without understanding what happens when everyone moves at once. If the United States does close to foreign intended parents, every remaining established destination will feel it. Some may handle it well. Some will not. That is a reason to take advice on a specific destination at a specific moment, rather than choosing from a list of countries that looked good last year.

We go through the options and the trade-offs with clients regularly, and we would rather have that conversation before you commit than after.

Talk to us

If you have a surrogacy arrangement underway in the United States, please contact us 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 clients across Australia and overseas are entirely normal for us.

If your surrogate is already pregnant, please do not wait.

This page is general information. 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.

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