Key Takeaways
- A pre-birth order establishes intended parents as legal parents before birth.
- It is essential for medical decisions and to get the intended parents on the birth certificate at birth.
- Some states are more lenient on biological connections, so the location of the birth is very important.
If you’ve decided to grow your family through surrogacy, one of your biggest fears might be whether or not your names will appear on the birth certificate. There are quite a few factors that need consideration regarding the intended parents’ legal rights.
Where the baby will be born is very important. But so is having a pre-birth order in surrogacy. What is a pre-birth order, though? And what does it entail?
What Is A PBO?
A pre-birth order (PBO) is an essential legal document that is filed during the second or third trimester. As a court order, it officially names you as the child’s legal parents before the birth ever occurs. There is no adoption paperwork, no legal ambiguity at delivery, and no waiting weeks for your rights to take effect.
- It gives you immediate medical decision-making authority for your newborn.
- It instructs the vital statistics department to put your names directly on the birth certificate, completely bypassing the surrogate’s name.
- It legally establishes the intended parents and relinquishes the gestational surrogate’s parental rights before birth.
Where is a pre-birth order available?
A pre-birth order in surrogacy is available in some states, but not all. That is why where the baby is born is very important.
Some states have stricter laws and limitations when establishing parental rights. The state may allow for a pre-birth order, but on the condition that the parents are married and heterosexual.
In states like Louisiana, Indiana, and Nebraska, there are statutory restrictions. Louisiana is literally a no-go zone for surrogacy. Citizens in Tennessee may battle hurdles if they are non-biological parents. And in Virginia, you need to get court approval before any medical procedures start.
Understanding what a pre-birth order is and how it is affected by laws in your surrogate’s delivery state is vitally important.
At this point, it is interesting to note that a pre-birth order in surrogacy is affected by location. Where you (as an intended parent) live actually matters less than where the baby will be born. If your surrogate gives birth to the baby in a jurisdiction that is highly restrictive, then that state’s rules will apply.
What happens if a PBO is not available?
In states where surrogacy law has not yet been passed, pre-birth orders won’t necessarily be granted. The courts might not even accept them. To achieve full legal parental rights in this case, intended parents must either complete a second-parent adoption or seek a post-birth order shortly after the delivery.
The importance of a PBO
It is very important to get a pre-birth order during surrogacy in place as soon as possible. The reality is that complications can arise at any time.
Early labor
If the baby is born prematurely or the surrogate goes into labor before the attorney has filed the legal petition, the hospital will automatically rely on local state law. This could mean that the surrogate is listed as the mother until emergency court motions are filed.
The weighting of what a pre-birth order is becomes very clear in a situation like this. Without it, the intended parents would not have any authority regarding the baby at that time.
Insurance claims
In order to add a newborn baby to your policy, your health insurance provider will need proof of legal responsibility. If you have a pre-birth order during surrogacy, claiming coverage for neonatal care would be a lot easier instead of becoming an administrative nightmare.
Medical decisions
If emergency medical decisions are required during delivery, hospital management teams will want a court order stating that the intended parents have the legal authority to make those decisions. They would hesitate to act on an intended parent’s word without an official document.
How do you actually get a pre-birth order?
Although it may seem like a mountain of legal paperwork, obtaining a pre-birth order in surrogacy is actually a more straightforward process that takes place primarily behind the scenes when a skilled reproductive lawyer is in charge.
Around the middle of the second trimester, your attorney will start gathering the necessary documentation. You can discuss what a pre-birth order is with your attorney if you need more information at this time. They’ll need documents such as medical affidavits from your IVF clinic confirming the embryo transfer, along with certified copies of the original gestational carrier agreement.
When they have everything they need, the surrogacy attorney will file everything in court. This will happen at the local court where your surrogate lives or plans to deliver. If she lives in a surrogate-friendly state, or one that generally allows pre-birth orders, then this should happen fairly easily.
From there, granting a pre-birth order in surrogacy is up to the judge. In surrogacy-friendly states, this is usually just an administrative sign-off.
A judge reviews the paperwork in chambers and signs the order without anyone ever setting foot in a courtroom. In some areas, a quick virtual or in-person hearing might be required, but it’s typically just a formal step to put the final stamp on your parental rights.
Once the judge signs off, certified copies of the PBO are sent straight to the legal and labor departments at your surrogate’s hospital well before the due date of the birth. That way, everyone on staff knows about the surrogacy and pre-birth order details long before labor begins.
Having a pre-birth order on delivery day
You’ll realize the significance of what a pre-birth order is when the big day eventually comes. What could have been a severe legal nightmare becomes a smooth, happy occasion when that document is on file.
When you walk through the hospital doors, the medical team already knows the plan. You may receive badges or wristbands so you can move freely between the delivery room and the nursery. If there is already an agreement with the surrogate that you be present at the birth of your baby, you would not face any issues.
Having a pre-birth order in surrogacy means that if your baby needs special care or a trip to the NICU, you don’t have to wait for anyone’s permission. You have legal parentage over surrogacy and the authority to make medical decisions for your child from their very first breath.
Best of all, when it’s time to fill out the birth certificate paperwork, there’s zero confusion. The hospital’s birth clerk uses the court order to file directly with vital statistics. That means your names go straight onto your baby’s original birth certificate, right where they belong, letting you head home to focus on what actually matters: loving your newborn.
Family structures and pre-birth orders
Understanding what a pre-birth order is and obtaining a pre-birth order in surrogacy can be very important, albeit very difficult if you have a unique family structure. Some states have preferences and restrictions on granting a pre-birth order.
The fact of the matter is that not all relationships are the same, and some people may have non-traditional families or want to raise a child on their own. The law may have a different viewpoint.
LGBTQ+ couples and single parents
While progressive states will equally issue a pre-birth order to parents who are married, unmarried, in a same-sex relationship, or have no genetic relation to the child at all, some conditional states still require that intended parents be a married, heterosexual couple to obtain a pre-birth order in surrogacy.
Donor-gamete families
In states that require a biological relationship without adoption, obtaining a pre-birth order may be a little more challenging if neither intended parent has a genetic connection with the child (i.e., both the egg and sperm were donated).
Conclusion
Getting a pre-birth order is all about protecting your family and your rights as parents. Understanding what a pre-birth order is and its importance is just as vital.
Although the procedure of obtaining an official order is affected by state legislation, it is crucial that you work with an experienced surrogacy firm and a trained attorney. The team at Family Creations is available to help you at every stage of your surrogacy process.
FAQs
When should we get a pre-birth order?
Get a pre-birth order in surrogacy as early as 16 to 20 weeks into the pregnancy. The pregnancy is well on its way, and the order takes a little time through the courts. You can start gathering all the necessary legal documents as soon as possible.
Do both intended parents need to be biologically related to the baby to get a PBO?
The state where the baby will be born is relevant to this answer. The state’s statutes will determine whether both parents or only one needs to be related to the baby. Some states do not have this requirement at all.
What is the main difference between a pre-birth order and a post-birth order?
A pre-birth order in surrogacy establishes the legal rights of the intended parents before the baby is born, giving you immediate medical authority at the hospital. The birth certificate and surrogacy are not linked. A post-birth order is filed after delivery, meaning there may be a temporary window where the surrogate is legally recognized until the court officially grants your parental rights.
