The 2024 presidential election was a pivotal event for the U.S., with former President Donald J. Trump winning back the White House as the 47th President and likely also gaining control of Congress with a conservative majority in the Supreme Court. Trump’s administration is likely to result in many changes to the United States at all levels.
We will focus only on the changes we expect in key areas like healthcare, immigration, and reproductive rights and IVF, all of which can potentially affect intended parents in their surrogacy or fertility journeys. Here are some changes that the Trump administration may bring to the American legal system.
Healthcare:
In the world of surrogacy, the Affordable Care Act (“ACA”), which passed in 2010, has been helpful for intended parents and surrogates as open enrollment has allowed intended parents to choose surrogacy friendly policies for their surrogates, while the ACA also requires insurers to cover preexisting conditions, which include pregnancy.
The Trump administration has not stated it will repeal ACA or coverage for preexisting conditions, one of the most popular features of the ACA. However, the campaign sought to “offer more choices” by allowing insurers to create “risk pools,” which lets them raise insurance premiums for groups deemed risky. Different risk pools would likely include surrogates or pregnant women, potentially causing a sharp increase in insurance premiums for pregnant surrogates. Some surrogates might lose access to affordable insurance coverage. Should this change happen, which we rate as likely, the intended parents will likely face higher insurance costs for surrogates who do not have surrogacy friendly insurance.
Immigration:
One of the biggest promises of the Trump campaign has been cracking down on immigration. For international intended parents, Trump threatens to issue an executive order on day 1 which will order agencies to deny citizenship to babies born in the US if no parent has a green card or is a citizen. Some international intended parents Trump previously made this threat during his first administration. In our opinion, while it is likely to occur, it is not likely to survive a court challenge. The Supreme Court ruled in United States v. Wong Kim Ark back in 1898 that birth right citizenship applied to children born in the United States and an act of Congress could not prohibit a child born by foreigners in the US from becoming a citizen. An executive order by Trump would have less authority than an act of Congress, so we rate it is as unlikely to have an impact.
Furthermore, Trump campaigned on mass deportations of undocumented immigrants and removing temporary status from some immigrants. This is not likely to affect intended parents, but intended parents should know the immigration status of their surrogates. Intended parents should not choose surrogates who do not have legal status in the United States, or who may have tenuous status (asylum), and definitely avoid surrogates who have only temporary status or promise to come to the US to give birth.
LGBTQ Parentage:
Same-sex couples considering surrogacy may worry what impact a Trump administration or Project 2025 will have on their journey. While protections in areas of employment and education are likely targets, it is less clear what will happen with respect to parentage for LGBTQ couples.
It is advisable to secure extra legal documentation to recognize parental rights and not rely on only a birth certificate. For LGBTQ parents, obtaining a judgment or confirmatory adoption can ensure their rights as parents will survive future laws or decisions. In surrogacy journeys, this is normally done, but in most gamete donation cases, there is no judgment. Talk to your lawyer about if you are an LGBTQ parent without a parentage judgment or adoption order.
IVF and Embryo Status:
During his campaign, Trump offered to make IVF free to Americans with little detail on who would qualify, how it would be paid, or what services would be covered. At this point, this does not appear likely to be implemented.
Earlier this year, Congress introduced a bill to establish a federal “Right to IVF,” which would protect individuals’ rights to decide disposition of their genetic material, but it failed to reach a vote in the Senate. With both the legislative and executive branches likely controlled by the Republican party, this bill has no hope of advancing. On the other hand, conservative groups who supported Trump such as the Heritage Foundation, support more regulations on the IVF industry and view the destruction of embryos as incompatible with their pro-life beliefs. As Trump has promised not to sign a federal abortion ban, changes may occur mostly at the state level, as courts interpret laws that define life beginning at conception with no exception for IVF. Intended parents might wish to reconsider where they store their embryos, potentially moving embryos to states that do not have laws that treat embryos as persons.
Conclusion:
In conclusion, this election will have many consequences, but the consequences for those pursuing third party reproductive journeys will not be immediate for most. A Trump executive order on birthright citizenship appears to be the most likely to have an immediate impact but it is also likely to be suspended while it is challenged in court. We will have specific advice for international intended parents if it is not immediately suspended.
If you are considering surrogacy as intended parents, or a potential surrogate, consulting with a surrogacy lawyer is a good place to start. Especially in light of these potential new policies and a shift in leadership, the parties need an attorney who is resourceful and well-versed in the law.
As Fellows of the Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona.
For a free consultation in ART law, contact us now.