For many Australian intended parents, the United States offers a reliable, legally supported pathway to parenthood through surrogacy. One of the benefits of the US framework has been its policy of birthright citizenship, or jus soli, where babies born on US soil automatically acquire US citizenship—even if their parents are not US citizens.

However, a new Executive Order signed by Donald Trump in 2025, has raised concerns about the future of birthright citizenship—and what this means for children born through surrogacy in the United States.

The Executive Order aimed to remove birthright citizenship for children born to non-citizens, including tourists and those in the US for medical or surrogacy arrangements.

While the Executive Order is being challenged in US courts, many US lawyers and advocates are concerned about the impact and uncertainty, particularly for international intended parents who hoped for a smooth return home with their newborn.

What Does This Mean for Australian Intended Parents?

Currently, Australian children born international surrogacy obtain birthright citizenship at birth and can return home using a US passport while awaiting their Australian citizenship and passport. If US birthright citizenship is no longer guaranteed, the only alternative is to apply for Australian citizenship, which may lead to delays in returning home with the baby.

The Australian Government should prepare and respond to this uncertainty now, to make sure that Australian children born via international surrogacy are granted Australian citizenship quickly and efficiently and that new parents can navigate the processes easily.

Delays of several weeks or months are not just inconvenient—they cause a lot of stress, financial strain, and legal uncertainty for new parents stranded overseas with a newborn. Every child has a right to citizenship, identity, family and access to healthcare. There is a risk that children born via international surrogacy may be stateless if the Australian authorities do not provide an efficient pathway for citizenship applications.

As I traveled around the world for my Churchill Fellowship on surrogacy law reform, I spoke with many lawyers in the US who expressed concern about the Executive Order and its implications for birthright citizenship and US surrogacy.

Australia must reform our policies to meet the realities of international surrogacy arrangements. That includes being prepared to respond to changing legal frameworks in countries like the US, where our citizens rely on predictable, lawful processes to bring their children home.

If you are planning a surrogacy journey in the United States, or are already in the process, here are a few steps to consider:

1. Engage with an experienced surrogacy lawyer both in Australia and the US to understand the potential implications of the Executive Order. I also suggest speaking to a registered migration agent for advice about the citizenship application and passport process. Note that agencies and intermediaries cannot provide Australian immigration advice – this must come from a registered migration agent.
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2. Stay informed about legal developments in the US. This situation will continue to change.
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3. Contact your local MP or the Department of Home Affairs to ask what they are doing to protect Australian citizens born overseas through surrogacy.
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4. Plan for contingencies, including possible delays in obtaining citizenship or travel documents.

It is important for the Australian government protects the rights and well-being of children and families, wherever they are born.

I am writing to the Minister for Home Affairs, the Hon Tony Burke MP, to raise the issue and ask that he and his department address the issue as soon as possible.