On June 27, 2025, the Supreme Court of the United States issued a ruling in Trump v. Casa staying the injunctions previously blocking President Trump's Executive Order concerning birthright citizenship as applied beyond the parties in the relevant litigations. If the Executive Order goes into effect nationwide, it could have broad implications in the fertility and assisted reproduction space.
President Trump signed Executive Order 14160, "Protecting the Meaning and Value of American Citizenship," on January 20, 2025. The Executive Order states that certain children born in the United States would not be automatically entitled to United States citizenship. The Executive Order was to go into effect 30 days after it was signed and apply to all children born thereafter.
The Executive Order's Limitations on Birthright Citizenship
The Fourteenth Amendment to the U.S. Constitution affords citizenship to "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof." The Executive Order states that this clause "has never been interpreted to extend citizenship universally to everyone born within the United States." It goes on to identify certain categories of individuals that it asserts are among those not to be afforded birthright citizenship. Under the Executive Order, an individual born in the United States will not be extended citizenship if, at the time of birth, that individual's:
1) Mother's presence was unlawful OR lawful but temporary;
AND
2) Father was not a United States citizen OR lawful permanent
resident.
The Executive Order defines the individual's mother as the "immediate female biological progenitor," and the individual's father as the "immediate male biological progenitor." As written, if at least one progenitor is a U.S. citizen or a lawful permanent resident, the individual would automatically be afforded citizenship.
The Supreme Court's Decision in Trump v. Casa
Challengers in states across the country filed lawsuits almost immediately after the Executive Order was signed, asserting that the it violates the 14th Amendment to the U.S. Constitution and federal statutory law. Multiple federal district judges agreed and issued injunctions temporarily preventing the Trump administration from enforcing the Executive Order nationwide, while determinations as to its legality remained pending. The Trump administration then challenged the injunctions at the Supreme Court, arguing that injunctive relief extending beyond the parties in the individual actions (blocking the Executive Order from taking effect nationwide) were overly expansive.
On June 27, 2025, the Supreme Court ruled that federal district courts do not have the power under the Judiciary Act to impose "universal injunctions," as they did in this case. In doing so, the Supreme Court stayed the injunctions barring the Executive Order from taking effect, "but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue." Pending further developments in the federal district courts, the Executive Order is now set to take effect on July 27, 2025, and would apply nationwide.
Implications for the Fertility and Assisted Reproduction Space
The impact of the Executive Order in the fertility and assisted reproduction space will be dependent on additional guidance, including the interpretation of the term "progenitor." Progenitor, as used in the Executive Order to identify an individual's mother and father, is not defined. A progenitor may mean the person who contributed genetic material that resulted in the pregnancy (the "mother" contributing the egg; the "father" contributing the sperm). But, it could also mean a gestational surrogate or the intended or adoptive parents of the child. This definition is critical to determine who an individual's "mother" and "father" are under the Executive Order, and thus for the citizenship determination.
Specifically, if a child is born through circumstances involving a sperm or egg donor, or involving a gestational surrogate, the child's citizenship could be determined in multiple ways.
Donors. If a child's intended or adoptive parents are deemed "progenitors" under the Executive Order, the anonymity or citizenship status of a donor would not factor into the child's citizenship determination. Conversely, if "progenitor" is interpreted to be the contributor of genetic material, the Executive Order would presumably consider an egg donor to be the "mother" or sperm donor to be the "father" of the child. This would seemingly implicate the citizenship status of a donor of genetic material in order to determine the citizenship of the child.
Further complicating, and not expressly contemplated by the Executive Order, is the scenario involving an anonymous sperm or egg donor, whose citizenship status is not disclosed. The U.S. Department of State Foreign Affairs Manual provides that U.S. citizenship cannot be transmitted through an anonymous sperm or egg donor. 8 FAM 304.3-5. Further guidance will be necessary to determine whether, in that situation, the child's citizenship status would then be determined based only on the child's identified progenitor. The ambiguities of these scenarios may implicate privacy considerations for businesses in the fertility and assisted reproduction field that work with anonymous donors, as incentives to either preserve or forgo anonymity may arise.
Gestational Carriers. If "progenitor" is not limited to the contributor of genetic material, a gestational carrier in surrogacy (a surrogate who carries a fetus conceived using genetic material that is not that of the surrogate) could potentially be considered a "progenitor." If a gestational carrier is considered a "progenitor", then a child resulting from a pregnancy carried by a gestational carrier that is a U.S. citizen or lawful permanent resident would be afforded citizenship, regardless of the status of the genetic material contributors to such pregnancy. If a "progenitor" is limited to the contributor of genetic material, the citizenship status of a gestational carrier would not be relevant to the child's citizenship determination.
Looking Ahead
Further challenges to the Executive Order in federal district courts could delay its implementation, including ongoing challenges by individual states governments, which allege they are injured by the Executive Order and have the ability to vindicate the rights of their citizens. In addition, in the wake of the decision, individual plaintiffs have moved to certify class actions, which provides another procedural path to potentially reinstating broader injunctive relief. Ultimately, it is reasonable to expect that the merits of the constitutionality of the Executive Order will at some point be reviewed by the Supreme Court, potentially in the next Term. The Solicitor General represented during oral argument that it intended to seek review of adverse appellate decisions related to the Order, and the Supreme Court's majority opinion noted that representation.
Absent further injunctions, the Executive Order is to take effect 30 days after the Supreme Court's decision. If it does, the Executive Order calls for executive departments and agencies to issue public guidance regarding its implementation. In fact, the Supreme Court's decision specifically stayed injunctions that prohibited executive orders from developing such guidance. This guidance, particularly with respect to the definition of a child's "progenitors," will be crucial to understanding the impact on the fertility and assisted reproduction space.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
