When you embark on a surrogacy journey, you’ll learn all kinds of new medical and legal terminology. Something that you will hear referenced often, from the attorney’s office to the hospital, is a pre-birth order. This legal document is key to assigning parentage and is an important step in the surrogacy process – though at what point it occurs can vary by state. Depending on where your child is born, this parentage document will be completed either pre- or post-birth.
A pre-birth order is a document that establishes the intended parent(s) as the legal parents of the baby to be born. “A pre-birth order is the gold standard in fertility law,” explains Meg Ledebuhr, Esq., Director of Legal Services at ConceiveAbilities.
Typically, the associated documents are started in the second trimester and signed at least two (2) months prior to the birth.
“The earlier you can establish a pre-birth order, the better,” she says. “It’s ideal to get legal parentage locked in during the second or third trimester in the event the baby comes early.” Not all pre-birth orders are the same, Meg notes, “but at the very least they all establish legal parentage.” Some pre-birth orders also direct hospitals 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.
You might be wondering if legal counsel is necessary for a pre-birth order. The answer is yes: like all other legal aspects of surrogacy, an attorney’s expertise is necessary to ensure the documents are properly executed and filed. Someone unfamiliar with the world of surrogacy simply can’t navigate these details successfully.
Exactly how you obtain the pre-birth order depends not just on the state, but the county where your baby is born.
“Most of these court orders are obtained in the specific county in which the baby will be born,” Meg explains. “Counties have the ability to run their courtrooms their own way from an administrative perspective. Without attorney expertise, those details would be impossible to know.”
Because the process can vary so widely, your attorney must be well-versed in fertility law. One of the many benefits of working with an established agency like ConceiveAbilities is the concierge legal service; Meg takes responsibility for identifying an attorney in each state.
“I’ve done the legwork to find the best legal team for the intended parent and gestational carrier,” she says.
In some states, a pre-birth order is the only document needed to establish legal parentage and give direction to the hospital and the Office of Vital Records, and no other steps are required afterward. If you live in a state that does not issue pre-birth orders, or if, for some reason, the pre-birth order can’t be completed prior to the delivery, don’t panic. Your legal team will work to ensure all details are handled as quickly as possible once your baby is born.
A post-birth order is typically required in a state where a non-biological parent must be added to the child’s birth certificate after the baby is born – think same-sex couples and couples who utilize donor gametes. The state’s Office of Vital Records may require the hard data, or “the facts of the birth” and place the gestational carrier’s name on paperwork. The post-birth order will change that to reflect the correct parentage.
“In Wisconsin, for example, the gestational carrier’s name will be on the hospital paperwork because the Wisconsin Office of Vital Records wants the facts of the birth and is not interested in legal parentage. The fact of the birth is that the child was birthed by the gestational carrier,” Meg points out.
In these situations, there may be a court appearance for the new parents to attend soon after the baby is born. It may sound intimidating, but it is truly just a formality – rarely are there any complications because all parties are in agreement about who the child’s parents are. In fact, some families even celebrate this as the culmination of their journey.
“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 says. These court appearances have a joyous feel to them.
A common concern amongst intended parents: can a surrogate mother decide to keep the baby? In a word, no: not only does a gestational carrier have no genetic rights, but your legal contracts also ensure that you will have sole legal custody to the child. It’s also important to remember that your surrogate’s motivation is not to keep the baby – her goal is for you to become a parent.
Ultimately, whether you obtain a pre-birth order or a post-birth order, the end result is the same – you’re going home as the legal parent of your baby. If you’re ready to build your family and want more information on how to get started, our team is here to support you every step of the way.