When you’re an intended parent, one of the most significant concerns you’ll face is establishing legal parentage of your child born through surrogacy. The process and ease of establishing this legal parentage can vary greatly depending on the state where the surrogacy takes place, as laws and regulations around surrogacy differ across the United States. The two primary legal instruments used to establish parentage in surrogacy arrangements are pre-birth orders and post-birth orders. Understanding the differences between these two, and knowing which one applies to your situation, is crucial for ensuring your legal rights as a parent are recognized from the start.
In this blog post, Attorney Ralph Tsong shares his insights on the critical differences between pre-birth and post-birth orders, the two primary legal mechanisms employed to secure your legal status as a parent in surrogacy arrangements.
Understanding pre-birth orders and post-birth orders in surrogacy
Pre-birth orders
A pre-birth order is an important legal document, especially in cases involving surrogacy with a gestational surrogate. This document is carefully prepared and submitted to the court before the baby’s birth, formally asking the court to recognize the intended parents as the legal parents of the unborn child. The pre-birth order process aims to establish parental rights before the baby arrives.
When your legal representative or agency talks about “preparing the PBO,” they mean gathering and organizing all necessary legal documents. The term “pre-birth order” covers both the court’s decision and paperwork, emphasizing the comprehensive legal process to establish parental rights before the baby is born.
Upon the court’s approval of the pre-birth order, the signed parentage order or judgment, along with a letter from the attorney, is sent to the hospital. This letter explicitly states that, in this surrogacy case, the intended parents should be recognized as the legal parents. The court’s decision specifies that the gestational carrier and her spouse will not be named on the birth certificate or have any legal rights over the child.
This judgment is crucial because it allows the intended parents to handle official documents like the birth worksheet or birth certificate. It is essential for formally recognizing them as the sole parents mentioned on the child’s birth certificate, solidifying their legal rights and responsibilities based on the pre-birth order.
Post-birth orders
Some states do not issue pre-birth orders but rather post-birth orders. Post-birth orders are granted after the baby’s birth and declare that the intended parents are the parents. In states where the gestational carrier is initially listed as the mother on the birth certificate, the post-birth order instructs the state’s health department to replace the original birth certificate, officially acknowledging the intended parents as the legal parents of the child.
This may seem risky to intended parents since the legal parentage is established after the child’s birth. However, intended parents should not stress about the timing since the post-birth paperwork would be prepared at the same time as pre-birth paperwork would be prepared and filed before birth. This would mean that if anything happens like the surrogate not cooperating with having them removed from the birth certificate, the paperwork would already be filed. The surrogacy contract typically addresses potential scenarios and provisions to minimize the risk of disputes.
In post-birth order states, hospital letters are still sent to the hospital prior to obtaining a post-birth order. The hospital letter will have the same purpose of explaining the legal process of the surrogacy, and sometimes a power of attorney is presented to show that the intended parents should have the right to make medical decisions for the child.
Comparing post-birth and pre-birth orders
States like Washington, California, Nevada, and Oklahoma have courts that issue pre-birth orders. However, states like Texas, Florida, Oregon, Hawaii, and Missouri have statutes or courts that require a post-birth to confirm parental rights after the baby is born.
States like Illinois have streamlined administrative processes for issuing birth certificates in surrogacy without requiring a formal court proceeding. However, if intended parents prefer a court judgment to confirm their parental status, they can pursue a post-birth judgment in Illinois. New York is a pre-birth order state but has an administrative process that can result in a birth certificate in the name of the intended parents without court proceedings.
In general, there is not a significant downside to post-birth orders as opposed to pre-birth orders, as they lead to the same outcome: the birth certificate accurately designates the intended parents as the legal parents. There may be some logistical differences, such as the amount of time before a birth certificate is received or the requirement of power of attorney.
For international intended parents with US surrogates, pre-birth states may be popular if there are issues obtaining a visa to enter the US, especially during challenging times like the COVID-19 pandemic. Other countries may require a post-birth order. For example, in France, a post-birth order is necessary for officially recognizing parentage. Attorneys can request post-birth orders in pre-birth states.
About Ralph M. Tsong, Esq.
Ralph M. Tsong is a distinguished attorney, bringing over two decades of extensive legal experience to his clients.
Ralph’s commitment to justice and legal excellence led him to serve at various public law centers, including the Asian Law Alliance in San Jose and the Legal Aid Foundation of Los Angeles, where he sharpened his trial skills and advocated for those in need. His dedication to public service continued as he represented several key California departments, such as the Department of Fair Employment and Housing and the Department of Industrial Relations, as well as the U.S. Department of Homeland Security, Immigration and Customs Enforcement, for a decade.
An esteemed Fellow of the Academy of American Adoption and Assisted Reproductive Attorneys (AAAA) and the Academy of California Adoption and ART Lawyers (ACAL), Ralph’s expertise in family formation and reproductive law is recognized nationwide. His commitment to legal excellence and client advocacy was further acknowledged when he was selected as a Super Lawyer by Thomson Reuters in 2023.
Ralph M. Tsong’s career is marked by a dedication to providing top-tier legal counsel and support, particularly in the complex fields of adoption and assisted reproductive technology law. His extensive experience, combined with a deep commitment to his clients’ needs, makes him a trusted advisor and advocate for those navigating the intricacies of family formation law.
Tsong Law Group’s attorneys are well-versed in preparing pre-birth and post-birth orders. Tsong Law Group is a law firm specializing in reproductive law licensed to practice in California, Washington, New York, Arizona, Illinois and Oklahoma.
