What is Legal Parentage?

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ConceiveAbilities - Pre-Birth Order
By Fran Caruso, Esq.

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 the legal parentage process and accompanying legal documents. This process is the critical step whereby parentage is determined – though at what point and in what manner this occurs can vary by state. Depending on where your child is born, the legal parentage process will be completed either pre- or post-birth.

What does pre-birth mean?

The pre-birth process means that the relevant state law provides an avenue for the parties to present an order to a judge for entry prior to the child being born that establishes the intended parent(s) as the legal parents of the child. It will also likely direct the hospital to release the child to the intended parents after discharge and order the state’s Office of Vital Records to name the intended parents on the child’s birth certificate.
What does post-birth mean?
The post-birth process is overall procedurally the same as the pre-birth, but it occurs after the child is born. Often this is because the relevant state law contemplates the existence of a live child before anything can be filed or entered. But the ultimate result is the same – a birth certificate with the intended parents’ names and secure legal parentage of the child in favor of the intended parents.

What are the legal risks?

A common concern amongst intended parents when discussing pre-versus post-birth is whether there is a greater legal risk associated with the post-birth process; i.e., can the gestational carrier decide to keep the baby? In a word, no. ConceiveAbilities will only match intended parents and gestational carriers in a state that supports their respective rights. As the pregnant person, the gestational carrier will have standing to object to the process, whether in a pre- OR a post-birth state. But in either case and what really matters, is that such an objection would be a losing argument. The gestational carrier will have no genetic relationship to the child, there will be a gestational carrier agreement outlining the parties’ rights and responsibilities, and affidavits from doctors and lawyers proving that the intended parents are entitled to legal parentage. Additionally, there will be other documents in place, such as a HIPAA release and power of attorney, ensuring that the intended parents may make all medical decisions for the child and that the child is discharged into their care.
On the flip side, a common concern amongst gestational carriers is what happens if the intended parents do not take the baby; do I become responsible? Again, the answer is no. The gestational carrier agreement protects the gestational carrier from any legal or medical responsibility for the child.

We encourage you to not focus on whether the legal parentage will occur pre- versus post-birth because, in either circumstance, the intended parents’ legal rights will be secured, and their names will end up on the child’s birth certificate; it is truly a question of when it procedurally occurs.

A Final Note on Legal Parentage

Every state, whether pre-birth, post-birth, or some amalgamation of the two, has its own unique process and requirements. That is why it is critical to work with an experienced Assisted Reproductive Technology lawyer and agency; you do not want to be some one’s first when it comes to securing parental rights. One of the many benefits of working with an established agency like ConceiveAbilities is the legal oversight, education, and support provided to both intended parents and gestational carrier during the entire surrogacy journey, including the legal parentage process.

Learn more about growing your family with ConceiveAbilities.

And, are you a woman who enjoyed a healthy and successful pregnancy? Do you have friends or family who have suffered from infertility or need assistance from someone else to build their family? Have you ever considered the role you could play in helping someone else build their family - as a surrogate? Talk to us to learn more about the surrogacy process to help someone else's dream come true.

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