US Surrogacy and the Executive Order: What New Zealand Intended Parents Need to Know
Following the White House Executive Order titled “Continuing to Protect the Meaning and Value of American Citizenship”, I have received several enquiries from intended parents. The Order appears to contemplate circumstances in which children born through surrogacy in the United States may be denied recognition of US citizenship where neither intended parent is a US citizen.
While the legal validity, implementation, and ultimate effect of that Executive Order remain uncertain and may be subject to challenge, it is important for New Zealand intended parents to understand that a lack of US citizenship or a US passport would not necessarily leave their child without a pathway home to New Zealand.
The reason is that New Zealand surrogacy law takes a fundamentally different approach to parentage than the US framework.
Under New Zealand law, intended parents are not automatically recognised as the legal parents of a child born through surrogacy. Instead, legal parenthood is typically transferred through an adoption order made by the New Zealand Family Court. Once an adoption order is granted, the child generally becomes entitled to New Zealand citizenship where the adoptive parent or parents are New Zealand citizens, and may then obtain a New Zealand passport.
Importantly, in many international surrogacy cases, the surrogacy adoption process can be commenced and completed while the intended parents and child remain overseas. In appropriate cases, Family Court appearances can be conducted remotely, meaning families do not necessarily need to return to New Zealand before obtaining the adoption order and subsequent citizenship documentation.
Accordingly, even if a child born through surrogacy in the United States were unable to obtain a US passport because of future changes to US citizenship policy, there would still be a viable legal pathway for many New Zealand families to secure New Zealand citizenship and travel documentation for their child.
That is not to minimise the very significant implications these developments may have for intended parents from other countries, particularly where their domestic laws do not provide an equivalent route to citizenship or recognition of parentage. For those families, the practical consequences could be far more serious.
As always, anyone contemplating an international surrogacy arrangement should obtain jurisdiction-specific legal advice before proceeding. The interaction between US immigration and citizenship law, New Zealand citizenship law, and New Zealand surrogacy and adoption law is complex, and individual circumstances matter.
Stewart Dalley is one of New Zealand’s most experienced surrogacy lawyers. He has specialist expertise in international arrangements and the New Zealand Family Court adoption process for overseas-born children. If you are considering surrogacy in the United States or elsewhere overseas, get in touch
