It is important to establish parentage before birth through surrogacy. Here’s how to know if you need a pre-birth order in California.
The default federal law is that any woman who gives birth is the legal guardian of their child, but the practice of surrogacy conflicts with this standard. Pre-birth orders were created to rectify this issue, thus making it possible for the intended parents to establish legal guardianship before the child is born. Unfortunately, not all states permit pre-birth orders, and require the intended parents to submit documentation and go to court to establish parentage.
Is a Pre-Birth Order Permitted in California?
In short, yes, California does allow pre-birth orders and they are considered valid under the state’s surrogacy legislation. The state also does not require any additional documentation or court hearings for the intended parents to establish parentage, the pre-birth order functions as the sole confirmation of guardianship.
However, it is important to note that there is an exception to this. The only time where intended parents would have to complete additional steps to establish parentage is if their surrogate ends up delivering the child in a state that does not permit pre-birth orders. The intended parents would have to complete an adoption in California after the child is born to establish legal guardianship.
Related: 10 Steps to the California Surrogacy Process
How to Get a Pre-Birth Order
A pre-birth order is usually filed by the attorney of the intended parents, but it is still important for the intended parents to know how the process of obtaining a pre-birth order will function. These are the steps on how to obtain a pre-birth order.
- The attorney will gather the correct documents.
- Generally, they will need personal information from the intended parents and the surrogate, signed statements form the intended parents and the surrogate, and sometimes a signed affidavit from the doctor confirming that they completed the embryo transfer during the surrogate’s pregnancy.
- The attorney will file the documents.
- The documents are commonly filed around the seventh month of pregnancy, or anywhere from weeks 20-25.
- The attorney may need to file additional documents and evaluations during the surrogacy process if/when applicable.
- The order will be approved by the court.
- The attorney will be notified by the court when the pre-birth order is approved, usually within the next two months or before the child is born.
- The intended parents should obtain a copy of the order for the hospital where the child is anticipated to be born so the birth certificate process can begin with the correct parents’ names.
Note: Even if the pre-birth order is approved, the intended parents are not automatically the legal parents of the child. Only after the child is born do intended parents assume full guardianship.
Related: How to Establish Parentage in California
Not Completing the Pre-Birth Order on Time
It is crucial that the pre-birth order be completed in a prompt manner, as many issues can arise if it is not completed before the child is born. The order is necessary for the hospital to correctly create the child’s birth certificate, which could possibly contain the surrogate’s name if the child is born before the pre-birth order is approved. More severely, if the pre-birth order is not completed on time, the intended parents will have no rights over their baby upon birth. This includes guardianship but also the right to make any medical decisions for the newborn. It is recommended that intended parents file a pre-birth order anywhere between 4-7 months of pregnancy to guarantee approval before the child is born and avoid any of the potential issues.
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If you or a loved one would like to know more about pre-birth orders in California, get your free consultation with one of our California Family Law Attorneys today.