What will a Trump Presidency mean for UK parents’ access to US surrogacy and for parents living in America?

Many of our clients are asking us what the US election result and a second Trump Presidency could mean for US surrogacy. There is a lot we don’t yet know, but we have put together this blog to try and answer your questions, and will keep this page updated as we know more.

Could surrogacy be banned in the US under Trump?

Trump has not declared any plans to restrict the availability of surrogacy or IVF in the US. While a socially conservative/ right wing government might lean toward restricting the rights of LGBT+ people or giving embryos stronger protections, it may equally be inclined to support a practice which enables many heterosexual couples to have children and embodies US free market principles. IVF enjoys broad social acceptance across the US, and Trump himself has said he supports it.  While we will of course stay vigilant, it is important to remember that surrogacy does not attract the same controversy in the USA as it does, for example, in other countries with right wing governments like Italy.

Surrogacy would also be very difficult for a US federal government to restrict in practice. That is because there is no national US surrogacy law – the law is instead determined state by state, and that means that any attempts to restrict it would need to modify dozens of different laws in different states. Again, the impetus to do so at state level is not clear, with no obvious correlation between individual states’ approach to surrogacy and how conservative they otherwise are. Texas, for example, has longstanding liberal surrogacy laws, whereas New York prohibited surrogacy until 2021. Over many decades, US state law has moved in a generally progressive direction with nearly all 50 US states now supporting surrogacy in some form.

The local nuances, and any state-specific shifts, are something we will keep a close eye on. It’s a key part of what Brilliant Beginnings does in supporting your choices of US surrogacy professionals and where it is safe for you to match with a surrogate.  However, fundamentally, we are not concerned that there is a threat to the availability of US surrogacy.  

There’s more information about the current US view on this from the International Fertility Law Group.

Could surrogacy babies born to international intended parents no longer be entitled to US passports?

UK parents who have children born through surrogacy in the USA typically apply for a US passport for their child, giving them a quick and easy route home after the birth. The incoming Trump administration has declared an agenda against undocumented migrants, which could include an attempt to remove the rights of babies born to foreign parents in the USA to automatic American citizenship. Such a change would be extremely difficult to pass since it would involve an amendment to the US Constitution, something which requires a supermajority approval by both Houses of Congress and ratification from 3/4 of the US States. And any change, which would be targeted at parents living illegally in the UK, may not even affect intended parents through surrogacy who are legal visitors to the US.

However, even in a worst case scenario where it is no longer possible to get a US passport for a surrogate baby born in the States, we will find you another solution. And in fact we have been here before. In March 2020 the US government stopped issuing US passports (then because their offices were closed due to COVID restrictions) and Brilliant Beginnings and NGA Law successfully lobbied the UK government to put in place a special emergency passport procedure for surrogacy babies. We brought many US surrogacy babies home on UK travel documents and can do so again if necessary.

How do attacks on US abortion rights impact US surrogacy?

State-specific roll back of abortion rights is something which has been happening in the US long before the election, following the 2022 Supreme Court decision in the Dobbs v Jackson which made it possible for individual states to make their own rules. The election of Trump means there won’t be a reinstatement of abortion rights nationally, but we have yet to see whether more states will restrict abortion or if the pendulum will start swinging the other way (in seven US states the election also passed ballot measures to enhance or protect abortion rights).

In the context of surrogacy the right to abortion is relevant because, if there is no possibility of an abortion, it increases the risks for women volunteering as surrogates, who may not be free to terminate the pregnancy if there is a problem affecting their health or the baby’s.

Again, this is a state-specific issue, so in practice it means care will continue to be needed on matching and being aware of the context of the law for the state in which your surrogate lives. Surrogates, like all other American women, have the right to travel to another state for an abortion if they need one, and we will also continue to work with reputable US surrogacy agencies and attorneys to help you prepare carefully for all eventualities.

How will LGBT+ families living in America be affected by a Trump Presidency?

We anticipate a more hostile environment for LGBT+ families living in the US and know how much anxiety is being felt about this. Currently, the 2015 Supreme Court decision in Obergefell v Hodges protects marriage equality across the US, but if this is overturned the US would revert to state-by-state marriage recognition which could affect the legal status of LGBT+ spouses in some states.

Similarly, the recognition of parentage across state lines has always been complex for LGBT+ parents, and US reproductive law attorneys have worked for decades to help give LGBT+ families the best security.  It is  more important than ever to get good legal advice about what you can do to safeguard your family’s legal status as far as possible (see this guidance, for example).

If you or your partner is British or has roots in the UK, then that planning need not be limited to the US – you may want to look at shoring up your UK legal position too. Our sibling organisation NGA Law is already working with several American families who have decided to relocate to the UK following the election result, or want to keep their options open in case they need to do so.

To British parents through surrogacy living in the USA we say: your marriage will be recognised automatically in the UK, but your legal parenthood of children born through surrogacy will not be (since UK law treats the woman who gives birth and her spouse as the legal parents).  We can help with securing your children’s British nationality and making the court application you need to be recognised as legal parents by UK law so please do reach out. There is some more information about the UK legal issues for British expatriate parents through surrogacy living in the USA here.

As always, we are here for our community and will do what we can to keep you informed and to protect you.