In any hospital in the United States, the woman who gives birth to a baby is assumed to be the mother of the child. This makes sense in most situations – just not in the case of gestational surrogacy.

With surrogacy, you need to have legal orders in place to determine who the parents are. You’ll need a legal declaration that you, and not the surrogate, are the legal parent(s) of the child.

How and when you go about drafting and signing this document this depends on where the baby will be born.

What is an order of parentage?

Simply put, an order of parentage is a legal document that names you as the legal parents of the baby – as opposed to the birth mother and her spouse.

Without a legal order of parentage, the intended parents can’t take the baby home from the hospital, add him or her to their health insurance, or make any legal or medical decisions for the child. As you can imagine, having a complete and binding order of parentage is of the utmost importance.

Many states allow this document to be created and signed while the surrogate is pregnant. Others, however, require the baby to be born first. Be sure to work with a lawyer who has experience with surrogacy cases and who knows the law in the state and county where the baby will be born.

Let’s look at the process for both pre-birth orders and post-birth orders.

What is a Pre-Birth Order?

If your state allows for pre-birth orders, your lawyer will create an order of parentage sometime between month four and month seven of the pregnancy. Most attorneys advise getting this completed during the second trimester, in case the baby is born prematurely.

This document names you, the intended parents, as the legal parents of the baby.

Pre-birth orders can ease a lot of the legal worry before your baby arrives. The advantage to this is clear: we all know that once baby is born, a flurry of activity, sleep deprivation, and new parent busyness arrives. Adding additional legal steps after the fact can be burdensome and time-consuming.

Pre-birth orders provide some peace of mind to the intended parents and eliminate unnecessary worry. The more you can do to cross all your t’s and dot all your i’s before the birth, the better!

With pre-birth orders, your (and your partner’s, if applicable) name will go on the birth certificate as the legal parent(s), and the surrogate will have no legal obligation or claim to the child. You’re also sure to have access and decision-making rights at the hospital.

What is a Post-Birth Order?

In some states, you won’t have the option to create a parentage order until after the baby is born. Don’t worry, though! As long as you are working with an experienced surrogacy attorney, you’ll be just fine.

The process for a post-birth order typically looks like this:

When the child is born, the surrogate and potentially her spouse will likely be named on the birth certificate. You should still have the right to make medical, personal, and financial decisions at the hospital, but there will be a bit more red tape after the birth. A well executed Gestational Surrogacy Agreement (GSA), drafted by a competent fertility attorney, should guarantee these rights.

After the child is born, your lawyer will petition the court to name you as the legal parents. They will also require that the surrogate’s name be removed from the birth certificate and replaced with yours.

These orders typically go through without complication, especially when there has been a solid GSA in place and all parties agree about the outcome.

Again, we can’t stress enough the importance of having an experienced lawyer to guide you through the legal maze. States, and even counties, have different laws, regulations, and procedures, making it extremely difficult to navigate without an experienced professional to guide you.

For more information on the ins and outs of your surrogacy journey, visit us at Surrogacy Roadmap, your DIY guide to all things surrogacy.