Building a family is a deeply personal and often complex journey. For international individuals and couples facing infertility, choosing to pursue assisted reproductive technologies abroad adds another layer of considerations. The United States has long been a leading destination for in vitro fertilization (IVF) and surrogacy, offering advanced medical expertise and a broad range of options for Intended Parents. However, recent political and legal developments have raised questions about reproductive freedom, the security of IVF access, the implications of abortion rights decisions, and the certainty of birthright citizenship. This article aims to provide clarity and informed guidance to help international Intended Parents navigate these issues with confidence and hope. While the landscape presents certain complexities, the fundamental principles of the US legal system and the country’s enduring commitment to family formation provide a stable foundation for those seeking to grow their families.
The Enduring Principle of Birthright Citizenship in the United States
Birthright citizenship is a cornerstone of American law, enshrined in the Fourteenth Amendment to the United States Constitution. The Citizenship Clause of this amendment clearly states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” This principle was further solidified in 1898 by the landmark Supreme Court case United States v. Wong Kim Ark, which affirmed that children born in the United States to immigrant parents are citizens, regardless of their parents’ immigration status. For over a century, this interpretation has ensured that virtually anyone born on US soil is automatically granted citizenship at birth, a defining feature of American law.
Recently, there have been challenges to this long-standing precedent. In January 2025, an executive order sought to restrict birthright citizenship for children born to parents who are undocumented or in the country on temporary visas. This action sparked immediate and significant legal challenges, with multiple federal courts swiftly blocking its enforcement. Judges across several states upheld constitutional protections, citing the conflict between the executive order and established Supreme Court precedent, particularly Wong Kim Ark. One federal judge described birthright citizenship as a “fundamental constitutional right,” emphasizing that the government cannot alter constitutional principles through executive policy.
For international Intended Parents, it is important to understand that the current legal standing of birthright citizenship remains largely protected under the Fourteenth Amendment. While there are limited exceptions, such as children born to foreign diplomats residing in the US, the principle of automatic citizenship for those born within the country’s borders holds firm. Any fundamental change would require a constitutional amendment, not just an executive order. The swift legal challenges to the recent executive order underscore the resilience of the US legal system in upholding established constitutional principles, providing reassurance to those planning their families in the United States.
Navigating the Landscape of IVF in the United States: Legal Protections and Considerations
IVF in the United States is regulated at both federal and state levels, with oversight from professional medical organizations. The Food and Drug Administration (FDA) regulates drugs and devices used in the IVF process, while the Clinical Laboratory Improvement Amendments (CLIA) establish federal standards for laboratories conducting hormone level measurements during IVF. The Centers for Disease Control and Prevention (CDC) tracks IVF outcomes under the Fertility Clinic Success Rate and Certification Act of 1992. Additionally, organizations such as the Society for Assisted Reproductive Technology (SART) and the American Society for Reproductive Medicine (ASRM) set rigorous ethical and professional standards for IVF clinics.
A significant legal development occurred in February 2024, when the Alabama Supreme Court ruled that frozen embryos are legally considered children under the state’s Wrongful Death of a Minor Act. This decision, stemming from a case involving the accidental destruction of frozen embryos, led some clinics in Alabama to temporarily suspend IVF treatments due to concerns about legal repercussions. However, the Alabama legislature quickly responded by passing a law granting immunity to IVF clinics and practitioners from civil or criminal liability related to embryo destruction, allowing services to resume.
While legal experts believe the direct impact of this ruling is likely limited to Alabama, the case has raised broader concerns about the evolving legal status of embryos. In response, federal legislative efforts have emerged to ensure continued access to IVF. The “Right to IVF Act” (S. 4445) seeks to establish a statutory right to fertility treatments, including IVF, and ensure insurance coverage, though it has faced political opposition. Another bill, the “IVF Protection Act,” proposes conditioning states’ Medicaid funding on allowing IVF access. Additionally, in February 2025, the Trump administration issued an executive order directing the development of policies to improve IVF affordability and accessibility, reflecting broad bipartisan support for protecting access to IVF.
Understanding Abortion Rights and Their Impact on Assisted Reproduction
The US abortion rights landscape has shifted significantly since the Supreme Court’s 2022 decision to overturn Roe v. Wade, eliminating the federal constitutional right to abortion and allowing states to regulate or ban the procedure. This has resulted in a patchwork of laws, with some states enacting strict bans and others passing legislation to protect abortion access.
The concept of “fetal personhood” has emerged as a key issue, raising concerns about its potential impact on IVF. If embryos are legally recognized as persons, IVF procedures such as preimplantation genetic testing, embryo freezing, and embryo disposition could be affected. Additionally, restrictions on abortion may indirectly impact surrogacy, particularly in cases of multiple pregnancies requiring selective reduction or when a surrogate carries a non-viable pregnancy. However, most legal and medical professionals continue to distinguish between abortion laws and assisted reproductive technologies. The strong public and legislative response to the Alabama embryo ruling suggests a widespread recognition that IVF should remain legally protected, even as abortion laws evolve.
Surrogacy in the United States: Identifying Legally Secure Pathways
Surrogacy laws in the United States vary by state, creating a diverse legal landscape. States fall into three general categories:
- Surrogacy-Friendly States: These states have clear legal frameworks that support surrogacy for various Intended Parents, including single individuals and same-sex couples. Many allow pre-birth orders, making it easier for parents to establish legal parentage.
- States with Conditions or Inconsistencies: In these states, surrogacy is permitted but subject to restrictions, such as requiring Intended Parents to be married, genetically related to their embryos and/or residents of the state. Parentage orders may require additional legal steps.
- States with Cautionary or Prohibitive Laws: Some states either discourage or prohibit certain types of surrogacy arrangements. For international Intended Parents, choosing a surrogacy-friendly state is crucial. Working with experienced surrogacy agencies and reproductive attorneys can help navigate state-specific laws, ensure proper parentage recognition, and prevent legal complications.
Global Perspectives on International Surrogacy: A Comparative Overview
The landscape of international surrogacy is dynamic and subject to evolving regulations worldwide. Recent developments indicate a trend in some countries towards implementing or considering stricter rules regarding international surrogacy arrangements. For example, there are reports suggesting that Japan may be considering measures to outlaw international surrogacy, following a similar path to Italy, which has already taken steps to restrict the practice.
This trend highlights a broader global reevaluation of international surrogacy, with concerns often centered on ethical considerations, the rights and well-being of surrogates, and the legal complexities of cross-border parentage. While the United States has been a prominent destination for international Intended Parents seeking surrogacy services, these global shifts serve as a reminder that the legal landscape can change, and the US, despite its relatively established framework in certain states, may face increasing scrutiny or challenges to its international standing in this field.
Compared to some other nations that are moving towards stricter regulations or outright bans, the US, particularly in its surrogacy-friendly states, offers a more established and legally defined pathway for international Intended Parents. However, it is essential for Intended Parents to stay informed about global trends and to carefully consider the legal implications in their country of origin as well as their chosen destination in the US.
Seeking Expert Guidance: Legal Resources for International Families
Navigating the legal complexities of reproductive law, particularly when crossing international borders, necessitates seeking expert guidance. Several organizations in the United States specialize in reproductive law and offer support to international Intended Parents pursuing IVF and surrogacy. These resources can provide invaluable assistance in understanding state-specific surrogacy laws, navigating parentage establishment procedures, and addressing any potential legal challenges.
It is strongly recommended that international Intended Parents seek independent legal counsel not only in their country of origin to understand the legal implications there but also in the specific US state where they plan to undergo IVF or surrogacy. An attorney specializing in reproductive law in the chosen US state can provide tailored advice on the legal requirements, draft and review surrogacy agreements, and guide Intended Parents through the process of obtaining pre-birth or post-birth parentage orders. Additionally, consulting with experienced surrogacy agencies that have a strong understanding of international parentage laws and the legal processes involved in cross-border reproductive arrangements is crucial. These agencies often work with qualified attorneys and can provide valuable support and resources throughout the entire journey.
Looking Ahead: The Future of Family Building in the United States
The political climate in the United States remains dynamic, with ongoing debates about reproductive rights. However, the country’s legal framework, including strong judicial oversight, provides stability for those pursuing IVF and surrogacy. While state laws vary, bipartisan support for assisted reproductive technologies and family formation remains strong. The swift legal responses to restrictive policies, such as the Alabama embryo ruling and the executive order on birthright citizenship, demonstrate the resilience of the legal system in protecting fundamental rights.
For international Intended Parents, the United States continues to offer one of the most advanced and legally structured environments for assisted reproduction. By working with knowledgeable professionals and choosing legally secure states, Intended Parents can confidently pursue their dream of building a family in the United States.
Conclusion: Your Dream of Family in the United States Remains Within Reach
The decision to pursue IVF and surrogacy in a foreign country requires careful consideration and informed decision-making. While the United States presents a complex legal and political landscape, it also offers unparalleled medical expertise and established legal pathways for family building, particularly in certain states. Despite the occasional turbulence in the political and legal spheres, the fundamental principles of the US legal system, the broad support for assisted reproductive technologies, and the dedication of professionals in this field ensure that your dream of building a family in the United States remains within reach.
Written by Andrew Vorzimer, Vorzimer Masserman
Andrew W. Vorzimer heads the firm’s Third-Party Reproductive Practice at Vorzimer/Masserman (VM). Mr. Vorzimer is a frequent author on subjects including third-party reproduction, surrogacy, and egg donation. Mr. Vorzimer was the recipient of the “Illumination Award” from the American Fertility Association (AFA) and the 2017 Whittier Law School Alumni Attorney of the Year Award.
Mr. Vorzimer has been quoted as an expert or appeared in numerous magazines and news shows, including 60 Minutes, CNN, The New York Times, The Wall Street Journal, The Los Angeles Times, Medical News Today, USA Today, and MSNBC. Mr. Vorzimer is recognized worldwide as the foremost expert in the fields of Surrogacy, Egg Donation, and Reproductive Law.
