Intended parents seek a birth order before or after their child’s birth. Here’s the difference between pre-birth and post-birth orders.
Traditional and gestational surrogacy allows many to conceive children and start families who wouldn’t be able otherwise. Parent(s) should understand the difference between pre-birth and post-birth orders to avoid any legal complications both prior to and following the child’s birth. Acquiring either pre-or post-birth orders fundamentally ensures intended parents gain full parental rights to their child(ren) in California without any conflict.
Pre-Birth Orders
Depending on the circumstances, parents may need either pre-or post-birth orders. Both are legal documents establishing who the parents of the child are; pre-birth orders are obtained prior to the birth of the child, whereas post-birth orders are obtained after.
Related: What is a Pre-Birth Order?
Obtaining a pre-birth order for traditional and gestational surrogacy is necessary to establish parentage. A pre-birth order establishes the intended parent(s) as the full legal parent(s) of the child prior to when the surrogate gives birth. As the name suggests, pre-birth agreements between the surrogate parent and the intended parent(s) must be signed before the child is born.
After signing such an agreement, a California court may grant full parental rights to the intended parent(s) rather than the surrogate, eliminating any potential legal disputes between the intended parent(s) and the surrogate.
Pre-birth orders are typically easy to obtain in the state of California, especially for married couples (both heterosexual and homosexual). For unmarried couples (and in various other circumstances), obtaining a post-birth order may be necessary to ensure full legal parental rights.
Related: Do I Need a Pre-Birth Order in California?
Post-Birth Orders (and when they are needed)
A post-birth order, on the other hand, is a document signed after the surrogate gives birth and establishes who the legal parents of the child are. A post-birth parental order typically takes the form of adoption; for example, if one intended parent is not the genetic parent (i.e., couples who utilize donor gametes) a step-parent adoption will occur following the birth.
Although many prefer pre-birth orders to avoid any legal trouble after the child’s birth, post-birth orders are required in certain circumstances, specifically when the intended parent is not the genetic parent. The intended parent(s) may still take custody immediately after the child’s birth with a post-birth order.
Related: What is a Post-Birth Order?
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