There’s a lot to prepare before your baby arrives, and in a surrogacy journey, some of that preparation happens in court.
A pre-birth order is part of the legal process used in many US surrogacy journeys to establish the intended parents as their baby’s legal parents. It happens during pregnancy, so the legal side of parentage can be dealt with well before the birth.
Your reproductive attorney handles the process, but it helps to know what a pre-birth order actually does, when it happens and where it fits among all the other legal paperwork you’ll encounter along the way.
What is a pre-birth order in surrogacy?
The quick answer: A pre-birth order is a court order used in some US surrogacy journeys to establish or declare the intended parent or parents as the legal parents of a baby before birth. Depending on the law that applies, it may also establish that the gestational surrogate, and where relevant her spouse or partner, are not the baby’s legal parents.
There isn’t one federal parentage process for surrogacy across the United States. Laws differ between states, which means the legal process used in one journey may look different from another.
We cover those differences in our surrogacy laws by state guide, which has been reviewed by reproductive law firm Vorzimer Masserman. Here, we’re going to stick to what a pre-birth order actually means for your journey.
So, what does a pre-birth order actually do?
A gestational surrogate carries your baby, but she isn’t entering the arrangement with the intention of becoming their parent. You are.
A pre-birth order is one of the legal mechanisms that can give effect to that intention. Where this process is available, the court can establish the intended parents’ legal relationship with their baby and address the legal status of the surrogate.
That becomes important once your baby is born. There needs to be clarity around parental authority, the hospital needs the relevant legal documentation, and the process for preparing the baby’s birth record needs to be followed.
The good news is that this isn’t something you should suddenly be figuring out from a hospital room. The legal work happens during the pregnancy, alongside everything else being done to prepare for the birth.
When does the pre-birth order happen?
You’ll already have been through one major legal stage before you reach this point.
Before embryo transfer, you and your surrogate will have independent legal representation and complete your Gestational Carrier Agreement, usually shortened to GCA. This is the agreement that sets out how the surrogacy arrangement will work, covering things such as compensation and expenses, medical care, insurance (take a moment to read this guide), and expectations around pregnancy and birth.
Then there’s an embryo transfer, hopefully a positive pregnancy test and, later in the pregnancy, the parentage work.
There isn’t one universal week when a pre-birth order is filed. The timing depends on the law and court procedures that apply to your journey, and your reproductive attorney will manage that with you.
So although the GCA and pre-birth order both involve lawyers, they’re doing two quite different jobs.
Is a pre-birth order the same as your surrogacy agreement?
No. The easiest way to think about the distinction is that your GCA deals with the surrogacy arrangement, while the parentage order deals with who the baby’s legal parents are.
The GCA is an agreement between the intended parents and surrogate. A pre-birth order comes from a court.
By the time parentage work begins, the GCA has generally been completed much earlier in the journey, before embryo transfer. The pre-birth order belongs to a later stage, when there is a pregnancy and everyone is preparing for the baby’s arrival.
You can see where those stages fit into the wider journey in our guide to the matching process for intended parents.
Does every surrogacy journey use a pre-birth order?
No, and this is probably the most important qualification in this article.
Surrogacy law in the US is state-based. Some journeys use a pre-birth order, others use a post-birth parentage process, and there can be other requirements depending on where the journey takes place and the circumstances of the people involved.
That’s also why asking “Is surrogacy permitted in this state?” and “How will we be established as our baby’s legal parents?” can produce two different answers.
You don’t need to become an expert in the laws of all 50 states. You do need the legal pathway for your own journey established before you proceed, which is one reason the legal side is considered as part of a surrogate match rather than being left until pregnancy.
For the state-by-state detail, our legally reviewed surrogacy laws by state guide is the better place to start.
What’s the difference between a pre-birth and post-birth order?
Mostly, it’s about when the legal parentage process takes place.
With a pre-birth order, the court process begins during pregnancy. A post-birth parentage order, as the name gives away, happens after the baby has been born.
Which one applies isn’t a menu choice for intended parents. It comes down to the legal framework governing the journey and the advice of your reproductive attorney.
From your perspective as a future parent, the important part is knowing which process applies to you and when it needs to happen. Once that is established, it becomes another planned stage of the journey rather than something you need to decipher yourself.
What if you’re using an egg donor or sperm donor?
This is where the difference between genetics and parentage becomes particularly useful to understand.
You don’t necessarily need to be genetically related to your baby to be their legal parent. That matters for intended parents using donor eggs, donor sperm or donor embryos, and it comes up frequently in surrogacy journeys for two dads.
In a two-dad journey, for example, one father will generally have a genetic connection to the baby and the other won’t. The legal process is about establishing the intended parents as parents under the law that applies to their journey, rather than simply treating genetics as the answer.
We go into the embryo, donor and parentage questions specific to two fathers in our gay surrogacy guide.
Who actually handles all of this?
Thankfully, not you alone.
Intended parents and surrogates have independent legal representation in a NewGen journey. Your reproductive attorney represents you and manages your parentage process, while your surrogate has her own attorney representing her interests.
NewGen’s role is to help keep those legal steps moving alongside the medical and practical parts of your journey, so you know what is happening and when. The legal advice itself comes from your attorney.
And by the time birth is approaching, the relevant legal documentation can be coordinated with the hospital as part of the wider preparation for your baby’s arrival.
Pre-birth order FAQs
Does every surrogacy journey need a pre-birth order?
No. Some surrogacy journeys use pre-birth orders, while others use a post-birth order or another parentage process. The process depends on the laws that apply to the journey.
When is a pre-birth order filed?
It happens during pregnancy, although the exact timing varies. Your reproductive attorney will advise when the parentage process can begin and manage the necessary court filings.
Can both intended parents be recognized as legal parents?
Yes, where the applicable legal framework allows it. The precise process depends on the circumstances of the journey, including the state in which it takes place.
Do I need a pre-birth order if I’m genetically related to my baby?
Genetics alone doesn’t determine which parentage procedure applies in a surrogacy journey. Your attorney will establish the appropriate process for your circumstances.
Is a pre-birth order the same as a birth certificate?
No. A pre-birth order concerns legal parentage, while a birth certificate is a vital record. The parentage process can affect how that birth record is prepared.
What if our journey doesn’t use a pre-birth order?
That doesn’t mean there isn’t a legal parentage process. Your journey may use a post-birth order or another procedure, depending on the relevant law. This should be established as part of your legal planning well before your baby arrives.
One part of getting ready for your baby
There will probably come a point in your journey when your attorney starts talking about parentage orders while you’re much more interested in scans, due dates and finally meeting your baby.
That’s exactly how it should feel.
The legal work is there to make sure the parentage side of the journey has been properly planned, with the right process happening at the right time and the right people handling it.
At NewGen Families, we coordinate with intended parents, surrogates and their independent attorneys throughout the journey so those legal steps move alongside everything else that needs to happen before your baby arrives.
Talk to NewGen Families about starting your surrogacy journey.
Surrogacy and parentage laws vary by jurisdiction and can change. This article provides general information only and isn’t a substitute for advice from a qualified reproductive attorney.
