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 unnecessary stress for both IPs and surrogates when they’re not properly understood.

In simplest 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 and are often signed by the seventh month of pregnancy in pre-birth order states. In post birth 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 a woman who could be your ideal surrogate. If you do choose a pre-birth state, know that everything will work out with or without your pre-birth order in hand at the time of birth.

Additional questions about birth orders can always be directed to your case specialist or your legal representative at IRLG.

Dr. Kim Bergman

Kim Bergman, PhD, a licensed psychologist of 22 years, has specialized in the area of gay and lesbian parenting, parenting by choice and third party assisted reproduction for the last two decades. Dr. Bergman has created a comprehensive psychological screening, support and monitoring process for Intended Parents, Surrogates and Donors. She is the co-owner of Fertility Counseling Services and Growing Generations and is a member of the American Society of Reproductive Medicine, the American Fertility Association, the American Psychological Association, the Los Angeles County Psychological Association, the Lesbian and Gay Psychotherapy Association, and the Gay and Lesbian Medical Association. She is on the national board of the Family Equality Council. Dr. Bergman writes, teaches and speaks extensively on parenting by choice. Along with co-authors, she published “Gay Men Who Become Fathers via Surrogacy: The Transition to Parenthood” (Journal of GLBT Family Studies, April 2010). Dr. Bergman created her own family using third party assisted reproduction and she lives with her wife of 28 years and their two teenage daughters.