WHAT IS A PRE-BIRTH ORDER
Pre and post-birth orders are items of extreme interest in gestational surrogacy. Both assign parentage to the intended parents and remove any rights or obligations from the surrogate. These birth orders can also cause a great deal of stress for both intended parents and surrogates when they’re not properly understood.
In the simplest of terms, a birth order is a legal document assigning parentage to a child. Depending on the state in which your surrogate lives, these documents can be started in the fourth month of pregnancy and are often signed by the seventh month in pre-birth order states. In post-birth order states, intended parents are usually seen in court within three to five days following birth.
The most important thing to understand about the pre-birth order is that while it may be issued by the court prior to the birth, it is not effective until the birth occurs. So, while having this court order signed two to three months prior to the birth may offer you some peace of mind, it is not an absolute necessity and should not cause you distress if early labor occurs before your pre-birth order is finalized. Parentage will be protected by other guardianship documents even if the pre-birth order is not in place at the time of the birth.
Some states do not offer the option of a pre-birth order. These states, post-birth states, do not allow the filing of parentage documents until after the birth of the baby to file parentage documents. In these post-birth order states, there will typically be a court hearing held after the birth, and the intended parents may be required to attend. Even if a hearing is required, know that these hearings are typically a formality and agreed upon easily by the courts as all parties are in agreement over the desired parentage of the child in question.
Court hearings can just as easily be required in states offering pre-birth orders. This reality, paired with the fact that pre-birth orders aren’t considered active until the birth of your child, makes the real-life difference between pre-birth and post-birth order states insignificant. In general, don’t let fear of working with a post-birth state scare you away from someone who could be your ideal surrogate. If you do choose a pre-birth state, everything will work out with or without your pre-birth order in hand at the time of the delivery. Additional questions about birth orders should be directed to the attorney's office helping you establish your parental rights.