Documenting the birth of a child is a practice that dates back generations. While it was initially necessary for tax and military purposes, an official birth record now ensures application for access to government benefits like a passport and driver’s license. The process, regulations, and laws can vary from country to country, but it is standard practice for the hospital, physician, midwife or the child’s parents to register the birth with the appropriate government agency.
But what about babies born via surrogacy? How do you register a surrogate birth? Read on to learn the four things you need to know.
When a child is born in the United States, he or she is automatically considered a U.S. citizen and is entitled to a U.S. birth certificate. That is true whether the biological mother or a surrogate gives birth, so the initial reporting of the birth to the Office of Vital Records is the same. The details from there, however, can vary; while the U.S. National Center for Health Statistics has standard recommended forms to document births, states are free to create their own forms that may look different and require different content.
These discrepancies from state to state – and in some cases, county to county - mean it is imperative that you have a firm understanding of the laws where your child will be born. Typically, the birth certificate forms are completed by the person who attended the birth or a hospital administrator. The forms are then forwarded to a local or state registrar to be safely stored. In a surrogacy birth, these forms may need to be adjusted so that they legally reflect the parents’ names and not the surrogate’s.
The process of registering a surrogacy birth often starts long before the child is born. Some states allow what is known as a pre-birth order; this document establishes the intended parent(s) as the legal parents of the child. Meg Ledebuhr, Esq., Director of Legal Services at ConceiveAbilities describes a pre-birth order as “the gold standard in fertility law.”
The documents associated with a pre-birth order are typically started sometime during the second trimester of the surrogate pregnancy and signed at least two (2) months prior to the birth. “The earlier you can establish a pre-birth order, the better,” Meg says. “It’s ideal to get legal parentage locked in during the second or third trimester in the event the baby comes early.”
A pre-birth order may direct the hospital to release the baby to the intended parents after discharge and/or order the state’s Office of Vital Records to name the intended parents on the baby’s birth certificate. Some states, however, do not issue pre-birth orders and instead require a post-birth order to grant legal parentage to the child’s parents. The Office of Vital Records may require the hard data, or the “facts of the birth,” meaning the surrogate’s name is initially on the birth certificate. A post-birth order changes that to reflect the correct parentage.
Many intended parents want to know: are surrogate births handled by the surrogacy agency? While the agency will support the parents in this process, the actual documentation is managed by the legal team.
Your attorney must be well-versed in your state’s fertility law to determine if a pre- or post-birth order is needed. If your child is born in a state that requires a post-birth order, you may have a court appearance to attend shortly after birth. “A lot of intended parents feel it’s a big event and a big deal, and the formality of the court process confirms that,” Meg explains.
A concern that comes up frequently is if there is any chance the surrogate can keep the baby. The answer is no: the gestational carrier has no genetic rights to the child, and these facts are established in the legal documents. Not only that, a typical gestational carrier isn’t looking for rights to the child: while she will likely experience an adjustment period after a surrogate birth, her motivation is simply to help you become a parent.
Contact our team to learn more about the legal services offered and how we can support you in your surrogacy journey.