Immigration counsel · Assisted reproduction
U.S. citizenship and immigration issues for international intended parents
The executive order signed August 6, 2026 names surrogacy arrangements by name, inside a category about commercial transactions to obtain citizenship. It does not regulate surrogacy, and it does not answer the question everyone in this field is now asking: where is the line between a contract valid under state law and what the order calls a commercial transaction? That question is open. This page explains what is settled, what is not, and where immigration counsel is actually useful.
General information, not legal advice. This page does not advise on structuring travel, contracts, or arrangements to evade immigration restrictions.
Who this page is written for
The order
What the August 6 order actually does — and does not do
The order directs that no federal department or agency shall issue documents recognizing U.S. citizenship — or accept state or local documents purporting to recognize it — for certain persons, where neither parent is a U.S. citizen and one of four conditions applies. One of those four conditions concerns commercial transactions to purchase birthright citizenship, and it expressly reaches surrogacy arrangements.
Three things follow, and they are worth stating precisely:
- It is not a surrogacy statute. Surrogacy is governed by state law and remains lawful and regulated in several states, including California. The order does not change that.
- It operates on documents. It does not itself conduct a denaturalization proceeding. It directs agencies not to issue or accept certain citizenship-recognition documents for covered persons, based on the administration's position that those persons do not acquire birthright citizenship.
- It has a threshold most matters will not cross. The four categories apply only where neither parent is a U.S. citizen. In ART matters, however, that threshold is not always self-evident — see below.
Every federal agency was directed to publish implementation guidance within 30 days of signing. That guidance, when it appears, is the single most important document for this field.
The honest map
What is reasonably settled, and what is genuinely open
Most of the commentary circulating in this field right now blurs these two columns together. They should stay apart.
Reasonably settled
- Surrogacy itself is a matter of state law, and is lawful and regulated in several states.
- A state court parentage order establishes parentage under that state's law, and is the foundation of ordinary U.S. surrogacy practice.
- For a child born in the United States, citizenship at birth is a question of the Fourteenth Amendment and 8 U.S.C. § 1401 — not of the contract.
- In June 2026 the Supreme Court confirmed birthright citizenship for children born here to parents unlawfully or temporarily present, subject to historically recognized exceptions.
- Federal agencies conduct their own analysis when a passport or certificate of citizenship is requested; a state order does not bind that analysis automatically.
Genuinely open
- What the order means by a “commercial transaction” — and how a state-law-valid surrogacy contract is distinguished from one.
- How agencies will implement the order in practice; the 30-day guidance had not been published when this page was last updated.
- Whether the four categories fit inside the narrow historical exceptions the Supreme Court preserved.
- How the order applies to births that already occurred; unlike the January 2025 order, it contains no express birth-date limitation.
- Who counts as a “parent” for the threshold, where federal parentage analysis and a state parentage order do not line up.
The pressure point
The “parent” question is the one to watch
The order's threshold turns on whether either parent is a U.S. citizen. In an ordinary case that is a simple fact. In assisted reproduction it can be a legal question — because parentage established under a state's law and parentage recognized for federal citizenship purposes are two different analyses, decided by two different institutions, on two different records.
That gap is not new and it is not created by this order. It has been a live issue in ART practice for years, particularly where the parties' relationships to the child are established by court order rather than by a shared genetic connection. What the August 6 order adds is a reason for federal agencies to look at the question more closely, in a category that names surrogacy explicitly.
The practical consequence is straightforward: in international ART matters, the parentage workstream and the citizenship-documentation workstream should be coordinated rather than sequenced. Discovering a federal documentation problem after a parentage order is final is a far worse position than anticipating it.
How the firm helps
Where immigration counsel is actually useful
Citizenship-documentation analysis
A written analysis of how a specific arrangement is likely to be examined when a passport or certificate of citizenship is requested — and what documentation supports it.
Immigration counsel for intended parents
For intended parents residing abroad: the visa, entry, and status questions that sit alongside the ART matter, and the consequences of getting them in the wrong order.
Agency and clinic briefings
A written, dated briefing your team can actually rely on — what the order says, what changed, what did not, and what to tell prospective clients without overstating either direction.
Co-counsel for reproductive-law attorneys
Immigration co-counsel alongside the attorney handling parentage, so the two analyses are built together rather than reconciled afterward.
Response to an actual refusal
If documentation has genuinely been refused, or a visa or entry problem has already occurred, the analysis starts from the record — see our visa revocation and entry denial page.
Monitoring the guidance
The 30-day agency guidance will matter more than the order's text. We track it and update our public explainer with a dated log.
Where this firm draws the line
This firm advises on what the law requires and what the risks are. It does not counsel clients on how to structure travel, contracts, or arrangements to evade immigration restrictions, and it does not provide transactional instructions designed to secure citizenship through travel. If that is what you are looking for, we are not the right firm.
We also will not tell you this area is settled. It is not. Any advisor telling international intended parents that the August 6 order is meaningless — or, in the other direction, that it eliminates U.S. surrogacy for foreign clients — is guessing at questions the agency guidance and the courts have not yet answered.
No outcome is guaranteed. What we offer is an accurate reading of the current state of the law, a candid assessment of risk, and a documented record.
Questions
Questions we are being asked
Does the August 6, 2026 order make surrogacy illegal?
No. The order does not regulate surrogacy, which is governed by state law and remains lawful and regulated in several states including California. The order addresses whether federal agencies will issue or accept documents recognizing citizenship, in four categories, and only where neither parent is a U.S. citizen.
Does it apply if one intended parent is a U.S. citizen?
The order limits its four categories to cases where neither parent of the child is a U.S. citizen. In ART matters, whether that threshold is met can itself be a legal question, because who counts as a parent for federal purposes is not always identical to who is named on a state parentage order.
Is a state parentage order enough?
A state court parentage order establishes parentage under that state's law and is the foundation of most U.S. surrogacy practice. It is not, by itself, a federal determination of citizenship. Federal agencies conduct their own analysis when a passport or certificate of citizenship is requested — which is why the two workstreams should be coordinated rather than sequenced.
Does the order apply to a child already born?
Unlike the January 2025 order, the August 6 text does not contain an express birth-date limitation. We will not tell you it is retroactive, and we will not tell you it is purely prospective — the text does not say. Agency guidance and litigation may clarify how the administration intends to apply it.
What should an agency tell prospective international clients right now?
Something accurate and dated: that a new executive order names surrogacy arrangements, that implementation guidance is pending, that the threshold turns on whether either parent is a U.S. citizen, and that individual matters should be reviewed by counsel. What an agency should not do is offer a workaround or a guarantee — both create exposure for the agency and for the client.
Do you work with agencies and other attorneys?
Yes. The firm works with surrogacy agencies, fertility clinics, and reproductive-law attorneys as immigration co-counsel, including written briefings for professional teams and coordination on individual matters where a reproductive-law attorney already represents the parties. For professional partners, an introductory call to scope the engagement is available at no charge.
How are fees handled?
Individual matters begin with a flat-fee strategy consultation, quoted in writing before it starts. Agency and co-counsel engagements are scoped and quoted in writing as well. There are no hourly surprises.
Next step
Request a consultation
Individual matters begin with a flat-fee strategy consultation. Agencies, clinics, and referring counsel can request a short introductory call at no charge to scope an engagement.