Toronto couple say Trump birthright citizenship law cost them their surrogate pregnancy

Renee and her husband had endured a decade of exhausting efforts to start a family, including multiple fruitless treatments and medical issues that seemed to make pregnancy impossible.

Then this April the Toronto couple’s ordeal seemed finally to be heading for a happy ending. An American agency had found a surrogate mother in the States to carry their longed-for baby, and the surrogate even visited the would-be parents in Toronto.

Four months later, Donald Trump in effect put an end to the arrangement.

The president was actually pursuing his goal of limiting so-called birthright citizenship. He issued an executive order that included a section barring American officials from issuing passports to babies carried by U.S. surrogates for international clients.

Such documents are crucial to foreign “intended parents” taking their newborns home and without them travel would be more complicated and time-consuming, experts in the field say. There are also fears the parents themselves could be refused entry to the U.S. under another executive order. As a result, some of the American surrogacy agencies suspended their international business altogether.

The company Renee and her husband used refunded the hefty fee they had paid – even though the firm was “very out of pocket” – and left them to start all over again.

“It’s certainly been a setback,” said the 44-year-old lawyer, who asked that her full name be withheld for privacy reasons. ”While it’s disappointing, we have quite a bit of practice in accepting bad news.”

The couple are not alone. The head of one prominent Canadian surrogacy agency says over 100 intended parents from Canada and other countries have contacted her in the last few weeks after the White House edict indirectly quashed their U.S. arrangements.

The agencies in many cases refunded fees that typically run over $200,000, said Sally Rhoads-Heinrich of Surrogacy in Canada Online. A judge recently issued an injunction halting the White House measures, but an appeal seems likely. Coupled with some states banning international surrogacy in part or entirely, the development could deliver a sharp blow to the U.S. business – and the foreigners who use it, said Rhoads-Heinrich.

“If you look on any of the U.S. (online surrogacy) professionals groups, they’re scared,” Rhoads-Heinrich said. “They’re saying it could be the collapse of the U.S. surrogacy industry because there are a lot of agencies that are primarily helping internationals.”

Close to a third of surrogate arrangements in the States involve out-of-country parents, according to a 2024 study from Georgia’s Emory University.

Many such clients are now pivoting to Canada – where surrogates can’t charge commercial fees and the costs for parents are much lower – but the pool of “gestational carriers” here is way too small to meet the demand, said Rhoads-Heinrich.

White House spokeswoman Lauren Bis did not respond to questions about the surrogacy situation, but repeated an earlier criticism of the recent judgment halting the executive order.

“This is just another ruling from an activist judge appointed by Biden attempting to thwart President Trump’s commonsense agenda,” she said.

American surrogacy agencies contacted by the National Post did not respond to requests for comment.

Most U.S. states allow commercial surrogacy, meaning more women become surrogates there and the wait time for parents who can afford to “match” with one is in the months, not years as in Canada.

The recent trouble essentially began in January 2025 when Trump tried to curb the right of any baby born in the U.S. to citizenship. The country’s Supreme Court overturned the policy this June, noting that the right is enshrined in the 14th amendment of the U.S. constitution.

That decision prompted the administration to issue the new orders on Aug. 6. One said that several categories of babies – including those born to surrogates for international clients – would be denied passports and other citizenship documents. Another said parents who were engaging in “birth tourism” by having a baby in the States just to win the child citizenship could be refused entry.

Tifany Markee, a lawyer who advises U.S. surrogacy agencies, said she has yet to hear of any newborn being refused a passport. But if that were to happen, the orders would make getting out of the U.S. much more difficult, likely forcing the parents to obtain a passport from their own nation for a child born in the States, and requiring American agencies to engage with unfamiliar foreign laws, said Markee, of Kansas City-based Foster and Bloom Family Formation Law Group.

As a result, several have proactively chosen to at least temporarily halt their international surrogacies, she confirmed.

“It makes travel more complicated,” said Markee of the orders’ potential impact. “Fundamentally, that’s what these families care about more than anything. It’s not really about the citizenship. It’s about their ability to then travel out of the U.S. and come home.”

That 2024 study suggested that 32 per cent of surrogacy clients in the States are from out of the country, about 41 per cent of those from China, followed by France and Spain at nine per cent each, with Canada also a significant source of intended parents.

Meanwhile, Renee’s hopes have recently been raised again. Another American agency told the couple it is willing to take them on and match them with a surrogate, despite the upheaval around Trump’s policy.

They turned to the U.S. in the first place after years of fertility treatments and medical complications in Toronto, then being told by Canadian surrogacy agencies that the average wait time was more than three years and could be as long as six. With both husband and wife now middle-aged and their parents aging, they decided time was of the essence and were fortunate enough to be able to go the more expensive American route.

But even if the episode does end happily for the couple, Renee has a beef with Canadian law in the area. Surrogates here can only ask for their receipted expenses to be repaid, a requirement of legislation that seeks to keep “assisted human reproduction” non-commercial.

Renee said surrogates should be paid commercial fees, not only to increase the pool of gestational carriers as fertility rates in Canada decline, but to properly compensate the women for an arduous task.

“If you asked 100 men ‘Would you ever consider carrying a pregnancy for someone and not be compensated for that?’ – I don’t think you’d find even one,” she said. “Our government has what I think is a very archaic and antiquated way of viewing this issue. There is a way to do this that makes sense where people aren’t being exploited … You can have a win, win, win.”