15 Sep 2020 What Is a Pre-Birth Order in Surrogacy Law?

A “pre-birth order” in surrogacy law is used to establish the legal parentage of a child born via surrogacy and is preferred by many intended parents. However, several U.S. states do not allow pre-birth orders, and intended parents must submit documentation and undergo a court proceeding to be declared the legal parents of their child post-birth.

Surrogacy Babies Require Parentage Order

Anytime a child is born through surrogacy, the intended parents must be established as the legal parents of the child, and any rights your surrogate (and the surrogate’s husband, if she is married) may be presumed to have under law must be terminated. Otherwise, the law presumes that the woman who gives birth—in this case, the surrogate—is the legal mother of the child—even though the surrogacy agreement establishes the surrogate’s intention not to be a parent of any child she delivers as a result of the surrogacy.

However, surrogacy law is a rapidly evolving field. The laws governing surrogacy and the parental establishment process vary widely from state to state, as well as from nation to nation. An experienced surrogacy lawyer who is familiar with laws across jurisdictions can advise intended parents and surrogates on what to expect, how to prepare, and, in some cases, help guide decisions about where their baby or babies should be born.

Experienced ART Attorneys Help Intended Parents Navigate Variable Laws

Typically, the process of establishing the intended parents as legal parents begins around the fourth month of the pregnancy, when intended parents meet with their fertility attorney to go over the next steps of the process, discuss documents to be prepared, and collect information from intended parents, surrogate and the IVF physician that will be included in the parentage documents. In the following month, the fertility lawyers will draft and file documents in the appropriate state agency or court.

In states where the law allows it, the fertility lawyer will file the case prior to the birth and obtain a pre-birth order of parentage for the sake of the intended parents’ reproductive rights. In the event a pre-birth order of parentage is issued by the court, the goal is for the surrogate to give birth in the state where that order was issued.

Other states require that the attorney file for the parental order after the birth and attend a court hearing.

Some states (such as Texas, Oklahoma and Utah) have a combination of a pre- and post-birth process, requiring the filing of both a preliminary filing and/or preliminary order and a post-birth “notice of birth” with the court before the final order is issued.

In other states (such as Illinois), the process is purely administrative; no court order is required, and the Department of Public Health issues the parentage order.

Documenting Parentage in Surrogacy

Barring any extraordinary circumstances, a pre-birth order of parentage is generally issued two to five weeks after the matter is filed with the court—typically several weeks before the due date. In “post-birth” states, a post-birth order is generally issued the same day as the post-birth hearing. Certified copies of the parental order confirming your legal rights as parent(s) to your baby are generally available to you shortly thereafter.

Due to the variability of the law from state to state and from country to country, consultation with fertility lawyers who are experienced in surrogacy law and fertility law is essential. International Fertility Law Group, which specializes exclusively in assisted reproductive technology law and surrogacy law, has established an extensive network of attorneys in jurisdictions across the United States who are experienced with ART cases and local laws.

For more information about pre- and post-birth orders or for help navigating the complex mix of laws governing assisted reproduction and parentage in the United States and abroad, call our experienced IFLG team today. We maintain two office locations and are available to be your fertility lawyers in New York and Los Angeles.