Building a family through surrogacy can be a fulfilling experience, but it also involves legal steps that must be addressed early in the process.
In California, which is considered a surrogacy-friendly state, a key legal tool for intended parents is the pre-birth order.
This legal document helps ensure that parental rights are clearly established before the child is born.
What Is a Pre-Birth Order in California?
A pre-birth order is a judgment issued by the court before a child’s birth that establishes the intended parents as the legal parents. This legal recognition ensures that parental rights are clearly defined from the moment of birth.
The certified court order is also essential for a seamless hospital experience. It allows hospital staff to list the intended parents’ names on the birth certificate information submitted to the Office of Vital Records.
In addition, the order enables the intended parents to make personal, medical, and financial decisions for their newborn at birth and ensures they can wear matching identification bracelets with the infant.
Legal professionals often coordinate with fertility agencies and hospitals in advance to ensure all procedures align with the court order, helping the delivery and post-birth process proceed smoothly.
Key Benefits of a Pre-Birth Order
- Legal Parentage: Confirms that the intended parents, not the surrogate, are recognized as the legal parents from the moment of birth.
- Birth Certificate: Enables the issuance of a birth certificate listing the intended parents.
- Medical Decision-Making: Allows the intended parents to make immediate medical decisions for the newborn.
- Hospital Procedures: Ensures hospital staff recognize the intended parents’ authority during and after delivery.
- Avoids Adoption: Removes the need for a post-birth adoption process that could otherwise be lengthy or complex.
Why a Pre-Birth Order Is Crucial in California
California law supports the use of pre-birth orders to protect the intent of the parties in a surrogacy agreement.
If a pre-birth order is not obtained, the surrogate and her spouse, if applicable, may be presumed to be the legal parent(s) of the child, despite the existence of a surrogacy agreement.
This legal ambiguity can complicate matters at birth, particularly when it comes to hospital access, birth certificates, or international travel documentation.
To better understand the legal foundation and practical impact of these orders, explore how parental rights are secured through pre- and post-birth orders.
The Pre-Birth Order Process
California’s pre-birth order process is shaped by state laws that support surrogacy. Its Family Code’s surrogacy and parentage laws provide the legal structure that makes these court orders possible.
The process of obtaining a pre-birth order typically includes the following steps:
- Client Intake: Relevant background information is collected early in the pregnancy, which may include documentation and background checks.
- Document Drafting: Legal documents necessary to request the pre-birth order are prepared.
- Review and Finalization: Documents are reviewed with the parties and finalized.
- Court Filing: The pre-birth order is filed with the appropriate U.S. Superior Court in the proper state and county. The process typically begins once the gestational carrier or surrogate is safely in the fourth month of pregnancy, and the goal is to establish legal parentage before the child’s birth.
- Court Hearings (If Required): A court hearing may be required depending on the county. When necessary, legal counsel attends these hearings on behalf of the intended parents to support the pre-birth order process.
- Obtaining Certified Copies: Once granted, certified copies of the pre-birth order are issued and can be used to coordinate with hospitals and relevant agencies.
- Coordination: Legal teams may work with fertility agencies and hospitals to ensure everything proceeds smoothly at delivery.
Key Considerations
- Timing: The process typically begins during the second trimester, around the fourth month of pregnancy.
- Venue: Petitions for pre-birth orders are filed in the U.S. Superior Court in the appropriate state and county. While specific rules may vary, legal teams ensure filings comply with applicable state laws.
- State Variability: Procedures for pre-birth orders vary between states. While this article focuses on California, different legal frameworks apply elsewhere.
- International Clients: Additional legal steps—such as passport and birth certificate processing—may be needed for intended parents who live outside the U.S.
Conclusion
A pre-birth order is a critical legal step for securing parental rights in California surrogacy arrangements.
It provides clarity, minimizes legal risks, and helps ensure a smooth transition from birth to home.
Understanding the process and initiating it early in the pregnancy can help intended parents avoid unnecessary complications and protect their role in their child’s life from the start.
At Fertility & Surrogacy Legal Group, APC, we are passionate about helping families grow through assisted reproduction. Our attorneys provide trusted, compassionate legal guidance to protect your rights and make the family-building process as seamless as possible.
