State lawmakers to explore banning foreign nationals from using Texas surrogates

State lawmakers are exploring prohibiting foreign nationals from using Texas surrogates, elevating a niche fertility issue into a larger battle over immigration and birthright citizenship, surrogacy experts say.

The Texas Senate health committee will hear testimony on Wednesday about potentially banning foreign nationals from contracting with Texas surrogates to have children, after Lt. Gov. Dan Patrick made examining the issue an interim charge for the chamber ahead of the legislative session that starts in January. Last month, the Texas GOP also approved in its latest platform a ban on commercial surrogacy for foreign nationals, arguing that the practice lets children born under such circumstances obtain U.S. citizenship.

Surrogacy is a medical procedure where a woman carries and delivers a child for another party. This is typically accomplished by transferring an embryo to the surrogate via in vitro fertilization (IVF) and the surrogate and the child are not biologically related. Among the most common users of surrogates are families who are suffering from fertility issues, as well as LGBTQ+ families.

Surrogacy experts and advocacy groups in Texas say arrangements with foreign nationals account for a small percentage of the thousands of surrogacy births that are estimated to occur in the U.S. every year. The exact number is unknown because surrogacy contracts are private and the government does not collect data.

They worry that targeting that slice of the industry could be the first step toward restricting, if not banning, surrogacy for all Texans. Surrogacy agencies are navigating existential threats on multiple fronts as the state Republican Party also supported banning public funding for IVF, which party officials consider a “destructive practice” for embryos. Without IVF, surrogacy is severely limited.

“It’s important to ensure the public conversation around surrogacy reflects the lived experiences of the one in six people who face infertility,” said Katy Encalade, president & CEO of Frisco-based Egg Donor & Surrogate Solutions. “Surrogacy is about creating families, not designer babies.”

Conservative groups believe they will have success regulating surrogacy this legislative session by tackling it as a birthright citizenship issue and one that threatens national security. Florida recently passed a law banning surrogacy and adoption contracts for any cases involving citizens or residents of a designated “foreign country of concern” including China, Russia, Iran, North Korea, Cuba, Venezuela and Syria. Congress is also considering similar legislation — Stopping Adversarial Foreign Exploitation of Kids in Domestic Surrogacy Act (SAFE Kids Act).

The move to cast surrogacy as a foreign threat comes amid multiple reports of Chinese nationals using American surrogates, including a 2025 Wall Street Journal report of a Chinese billionaire who had dozens of children via this procedure. Also last year, Kayla Elliott from Corpus Christi told The Center for Bioethics and Culture Network, a California-based organization that supports a global ban on surrogacy, that she was a surrogate to one of many children for a Chinese couple in California that was later arrested on child endangerment charges. The surrogacy agency Elliott worked with was also based in California.

Last week, the U.S. Supreme Court rejected President Donald Trump’s attempt to end birthright citizenship, drawing sharp criticism from conservatives. State Rep. Brian Harrison, R-Midlothian, wants the Legislature to pass laws criminalizing participation in birth tourism, stop issuing birth certificates to children of non-citizens and expand the attorney general’s office powers to investigate birth tourism businesses. In April, Attorney General Ken Paxton
sued a Houston birthing center, claiming it was “facilitating the invasion of Chinese nationals into Texas for the sole purpose of birthing children.”

“My read on it is there does seems to be an appetite to pass some legislation, at the very least dealing with commercial surrogacy, or with contracts with individuals who are not citizens of the United States, that’s like the baseline to me,” said John Seago, president of Texas Right to Life.

Seago said banning foreign surrogacy is the first step to ultimately regulating the surrogacy industry. His group does not support commercial surrogacy, which involves paying a surrogate to carry the fetus, and wants the Legislature to consider ethical limits on surrogacy broadly, mirroring larger conversations happening among conservative policy think tanks. Texas Public Policy Foundation, which declined to comment on the story, published a Dallas Morning News op-ed in April about the use of surrogacy in the “commodification of babies” and its alleged use in child trafficking.

The GOP platform also supports banning “third-party egg and sperm donations and the commercialization of human reproduction in Texas,” which could particularly harm access for Texans who want to have biological children but cannot with their partners or do not have partners.

“For us it’s really a question of how much higher we go to really put in a more robust ethical framework around the practice of surrogacy in Texas,” said Seago.

Texas first set up a legal framework for surrogacy in 2003 by allowing the biological parents, also called the intended parents, to be recognized as the child’s legal parents before birth. The law made Texas one of the country’s more surrogacy-friendly states, surrogacy agencies say. Since then, the Legislature has largely left surrogacy laws untouched.

Surrogacy is no longer just a family law issue but part of a larger political fight over who can use fertility services in the U.S., surrogacy agencies said. Egg Donor & Surrogate Solutions estimates that 5% of its cases involve foreign nationals while Dallas-based Simple Surrogacy estimates that less than 20% of all cases involve foreign nationals.

“Families that need surrogates, they’re cancer survivors, they’re women without a uterus, they’re same-sex couples, they’re people with unexplained infertility that just don’t know, or they’re more at advanced maternal age,” said Encalade.

The U.S. is globally considered the gold standard for surrogacy which is why surrogacy agencies say parents come here for treatment. They are not looking for American surrogates for the purpose of birthright citizenship, but rather to have a safe surrogacy process, said Stephanie Scott, executive program director of Simple Surrogacy. Many parents that contract with her agency have tried to use surrogates in other countries and it has either been unsuccessful or they lost a lot of money, she said.

“They want checks and balances,” Scott said.

If surrogacy is limited or banned statewide, like with other medical treatments, Texans will leave the state to seek the service, Encalade said. For those who do not have the resources to take that extra step, the state will be depriving good families of having the children they deserve, Scott said.

“Texas surrogacy law changes of any kind would likely have a chilling effect on Texans struggling with infertility being able to complete their families through surrogacy here,” said Christine Henry Andresen, an attorney with Austin-based CHA Law Group specializing in surrogacy law.

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Disclosure: Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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This story was originally published by The Texas Tribune and distributed through a partnership with The Associated Press.