Every couple using surrogacy to become parents should be prepared for a pre-birth order. Here’s everything to know about pre-birth orders.

A pre-birth order is defined as an agreement between the surrogate and the intended parents to establish legal parentage for a child born via surrogacy. Excluding unique circumstances, pre-birth orders are issued about two to five weeks after being filed with the court. Generally, the pre-birth order process begins at week 14 of pregnancy.

Surrogacy Law in the U.S.

Prior to insemination, the surrogate mother must sign a surrogacy agreement, stating that the surrogate has no intention to be a parent of any child she delivers via surrogacy. Unless a pre-birth order is signed, US law recognizes the woman who gave birth to the child as its legal guardian.

Because the use of surrogacy grows rapidly across the country, surrogacy laws differ across states. In states where pre-birth orders are prohibited, intended parents must submit documentation and attend a court proceeding in order to be declared as the legal parents of a delivered child.

A surrogate mother is expected to give birth to the child in the same state the pre-birth order was issued. If a pre-birth order is in place, the hospital is required to put the names of the intended parents on the birth certificate upon the child’s delivery.

Pre-Birth vs. Post-Birth Order: What is the Difference?

With the varying surrogacy laws across the U.S, it is important to know that some states prohibit pre-birth orders. However, acquiring legal parentage is not impossible; these states rely on post-birth orders. As noted from the name, post-birth orders are issued after the child is born. Even though there is a time gap between the birth of the child and the issuance of the post-birth order, intended parents are allowed to take custody of the child and assume all parental responsibilities once the child is born. In order for the surrogate to waive responsibility for the child upon birth, the surrogate may execute a health care power of attorney document demonstrating the intended parents’ rights to make any medical decisions for the baby.

Both pre-birth and post-birth orders establish the intended parents as the child’s only legal guardians and designate the intended parent’s names on the child’s birth certificate.

Documents Needed for a Pre-Birth Order

Some of the necessary documents needed in order to obtain a pre-birth order may include:

  • Egg/Sperm donor agreement
  • Embryo agreement
  • Surrogacy agreement
  • Affidavits from all involved parties

Using these documents and the acquired pre-birth order, the intended parents protect their own reproductive rights and their future child’s interests.

States that Allow the Issuing of Pre-Birth Orders

Here is a list of states in the U.S currently granting pre-birth orders:

  • California
  • Connecticut
  • Delaware
  • Maine
  • New Hampshire
  • New Jersey
  • Nevada
  • Rhode Island
  • Vermont
  • Washington
  • Washington D.C.

Advantages of a Pre-Birth Order

According to US surrogacy laws, pre-birth orders legally establish a child born from surrogacy’s parents. Aside from the clear identification of parentage, here are some advantages to obtaining a pre-birth order:

  • Intended parents are listed on the birth certificate
  • Intended parents are given unrestricted access to the newborn in the delivery room
  • Intended parents are allowed to make immediate medical decisions for the child
  • Intended parents are allowed to take the newborn child home from the hospital
  • Reduces the hassle of the need for additional paperwork by formal adoption and changing the birth certificate
  • Protects the surrogate from unwanted parental responsibilities
    Less stressful during post-labor recovery

Overall, a pre-birth order can give the hospital a directive from the court granting the intended parents’ rights to parentage without question.

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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 family law attorneys today!