Surrogacy: The Parentage Phase

After contracts, the next legal step is parentage. Once there is a pregnancy, legal work must be done to ensure that the intended parents are recognized as the legal parents of the child who will be born. While it depends on the state, this is often accomplished through a birth order. A birth order is a court-issued judgment that will declare the intended parents are the legal parents of the child and not the surrogate and the surrogate’s spouse or partner, if applicable. Depending on the state, birth orders can be obtained pre-birth, post-birth, or sometimes both pre-and-post birth orders are obtained.

Why are Birth Orders Important?

The following are key reasons why obtaining a birth order for the intended parents is critical:

• Legal Parentage: In many states, it is presumed that the woman who gives birth is the mother of the child. For surrogacies, the birth order rebuts this presumption and establishes the intended parents are the legal parents and recognized as such.
• Hospital Procedures: The birth order should ensure that the intended parents are making medical decisions for the child, and that the child will be discharged to them.
• Vital Records: The birth order directs the appropriate state agency to create (or amend depending on the state) the birth certificate to reflect the names of the intended parents.

How to Obtain a Birth Order

Multiple steps are required before a birth order can be issued by a court. General steps include: 

Step 1: The intended parents must tell their fertility law attorney there is a pregnancy once a pregnancy is confirmed. The attorney will not know there is a pregnancy unless he or she is told by the clients. Telling the attorney early gives the attorney ample time to calendar the event and plan for the work ahead.

• In Ohio, pre-birth orders are obtained. Work for the pre-birth order should begin at 20 weeks gestation for a singleton pregnancy proceeding normally, or 18 weeks if it is a multiple pregnancy or high risk. This timing provides balance between knowing the pregnancy is proceeding as hoped, while allowing ample time to obtain the birth order in advance of delivery.

Step 2: The attorney will gather the appropriate information to draft the pleadings – the legal paperwork necessary to obtain the birth order.

• To help expedite the process, intended parents should be as thorough as possible when providing the requested information to their attorney. If, for example, requested medical information is unknown, intended parents should contact their fertility clinic upfront and gather/verify.

Step 3: Once the attorney has drafted the pleadings, they should be sent to the intended parents to review and approve.

Step 4: After approval, the attorney will circulate the pleadings to the appropriate parties for signatures. For Ohio:

• The intended parents will have an affidavit to sign.
• The surrogate and her spouse or partner, if applicable, will have a number of documents to sign. In Ohio, the surrogate is not required to have separate representation for the parentage phase, although she may choose to be represented.
• The fertility physician, typically the physician who performed the embryo transfer procedure, will have an affidavit to sign.

Step 5: Once all the signed pleadings have been received by the attorney, the attorney will file them with the court. The court will then issue the birth order.

In Ohio, the intended parents should take a certified physical copy of the court order with them to the hospital at delivery.

For International Intended Parents

International intended parents should also retain experienced legal counsel in their home country. U.S.-based counsel will work with the intended parents’ home country counsel to ensure that the pleadings drafted comply with any legal requirements the intended parents’ home country may have. This is an essential step to ensure that the appropriate documents are prepared that will enable intended parents’ to obtain citizenship for and assert parentage of their child in their home country.

Birth orders ensure intended parents are recognized as their child’s legal parents. Because requirements vary by state, it is essential to work with an experienced fertility law attorney in the state where the birth will occur to secure a birth order that protects intended parents’ parental rights from the moment of birth.