A post-birth order may be required when using assisted reproduction. Here’s what to know about post-birth orders.

In some states, prospective parents must file post-birth orders to ensure legal custody and an accurate birth certificate for their child. This process may vary and is necessary in the absence of a pre-birth order.

Post-Birth Order vs Pre-Birth Order

Upon delivering a child through means of surrogacy, prospective parents must claim parentage by filing a birth order. In some states, pre-birth orders can be filed before the child is born. Alternatively, a post-birth order can be filed after a child’s birth. Although both orders may not become effective until after the birth, pre-birth orders are filed before birth. Both orders are used to legally designate the intended parents as the child’s legal parents on the child’s birth certificate. Additionally, birth orders can

  • legally allow the hospital to discharge the baby to the intended parents,
  • allow medical decisions to be made by intended parents, and
  • assist in resolving insurance coverage issues.

The main difference between post-birth and pre-birth orders is when they are filed. However, prospective parents using a post-birth order will not necessarily experience a delay in assuming parentage after birth. Legal parentage will not be granted until the approval of the post-birth order, yet custody will be granted immediately. The surrogate can enact a health care power of attorney to grant the intended parents control over the child’s medical decisions.

Related: Do I Need a Pre-Birth Order in California?

Additional Steps For Approval of a Post-Birth Order

Depending on state legislation, the further procedure may be necessary for the approval of a post-birth order, which may include possible genetic testing or step-parent adoption if one of the prospective parents is not biologically related to the child. A second-parent adoption may be possible for unmarried partners. Adoption from both parents or a single-parent can also occur. An adoption necessary to establish parentage may be completed conjunct upon obtaining the post-birth order.

If further genetic assurances as such are needed, this will still not halt the custody process for the intended parents.

When a Post-Birth Order is Necessary

The importance of a post-birth order depends on the potential parents’ state and situation, often depending on the intended parent’s genetic relationship with the child and the state or country of residence. In some states, post-birth orders may not be needed when intended parents are not a biological match. If looking to outsource a United States surrogate while residing in another country, potential parents should consult with lawyers from both countries; it may also be necessary to work with an immigration lawyer to obtain a U.S. Visa for visits with the surrogate or child.

There are also cases where post-birth orders may not be necessary. Same-sex couples and couples with no genetic relationship should consult with a lawyer rather than relying solely on the administrative process.

Related: Do I Need a Pre-B

FAQs About Post-Birth Orders

1. When should a post-birth order be filed?

Post-birth orders are generally filed three to five days after the birth of the baby.

2. What is parentage?

In surrogacy, parentage is dependent on who has legal rights to the child.

Related: How to Establish Parentage in California

3. What states do not have pre-birth orders?

The possibility and availability of pre-birth orders differ in each state. Both Michigan and New York do not offer pre-birth orders. Meanwhile, California, Connecticut, Delaware, District of Columbia, Maine, New Hampshire, Nevada, Oregon, Rhode Island, and Washington all offer pre-birth orders. States not listed may or may not offer a pre-birth order in their respective counties. These states may also consider the genetic relationship and potential parent marital status; parentage terms made in a surrogacy arrangement are decided in court and can depend on location or judge. An experienced attorney from Her Lawyer can help you make sure you establish parentage in your state.

Related: Do I Need Pre-Birth Order in California?

4. What is the main difference between a pre-birth order and a post-birth order?

Whether a pre-birth order or a post-birth order is being obtained depends on the time of filing, not always the time it is granted.

5. Does a post-birth order delay custody?

No, in many cases prospective parents with a post-birth order can assume immediate custody upon hospital discharge. Working with your surrogate and an attorney from Her Lawyer can help you ensure that you receive custody of your child upon hospital discharge. The surrogate may also allow for medical decisions to be made by the intended parents.

6. Can a post-birth order be filed with genetic relations from one parent or none?

Yes, an intended parent’s lack of biological relationship to a child may require a step-parent adoption, second-parent adoption, single-parent adoption, or adoption from both parents. Yet, depending on prospective parents’ location and situation., it is possible to move forth with a post-birth order without adopting.

7. Does the process differ in filing a pre-birth order?

A pre-birth order is generally filed in the seventh month of gestation, yet may be filed as early as four months after conception. A pre-birth order is completed with the intended parents and surrogate signing statements of parentage. The surrogate’s primary care physician may also sign an affidavit confirming their involvement in completing the embryo transfer. The intended parents’ lawyer may also need to file additional social documents and evaluations.

8. Are there other ways to establish parentage in surrogacy?

The main three ways to establish parentage are a pre-birth order, post-birth order, and adoption following birth.

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