A pre-birth order is a court judgment declaring your legal parentage to your chid conceived through assisted reproduction that is issued before your baby arrives. It establishes you and your partner as the legal parents of your child, and ensures your surrogate and any donors who may have provided gametes to assist you in building your family are definitively declared not to be legal parents. Pre-birth judgments of parentage are an essential part of every gestational surrogacy journey and advisable in most assisted reproductive matters. In New York, judgments of parentage and pre-birth orders of parentage may be granted before the child is born to allow the intended parents to be recognized as the legal parents of their child from the moment of birth and permit their names to be listed as parents on their child’s original birth certificate.
Why Intended Parents Require This Protection
Gestational surrogacy agreements are entered into by the intended parents and the gestational surrogate at the outset of every gestational surrogacy journey. This gestational surrogacy agreement serves as the roadmap for the entirety of your journey: from embryo transfer to pregnancy and delivery and through the postpartum recovery. Even though this agreement clearly identifies the intended parents of the child(ren) to be born, it isn’t enough to state your intentions. Parentage isn’t automatic when you are growing your family through gestational surrogacy. All parties to gestational surrogacy arrangements need to participate in a parentage proceeding in the relevant court to ensure the intended parents are determined to be the legal parents of the resulting child, and ensure the surrogate and her spouse, if any, are determined not to be legally responsible for the child. In New York, this process occurs after the surrogate is pregnant but before the child is born, allowing the court to issue a pre-birth order of legal parentage so the intended parents may be recognized as the legal parents from the moment of their child’s birth. Judgments of parentage are not only essential to surrogacy journeys, but are also important for most assisted reproductive arrangements involving gamete donation. A New York Assisted Reproduction Lawyer can petition the appropriate court to recognize your parental rights before the birth of your child. Here’s what a pre-birth order declaring legal parentage accomplishes:
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Ensures the surrogate’s name does not appear on the birth certificate;
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Establishes both intended parents as legal parents immediately upon birth;
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Allows the intended parents to make medical decisions for their newborn without delay;
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Prevents future custody disputes or challenges to parental status;
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Streamlines hospital paperwork and discharge procedures; and
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Are entitled to full faith and credit throughout the United States and in some foreign jurisdictions.
Your pre-birth order of legal parentage also provides your surrogate the peace of mind that she will not be legally responsible for your child and will have no legal responsibilities for the child she will give birth to as intended at the outset of the gestational surrogacy arrangement.
The Timeline And Process
When you can file your petition for pre-birth order of legal parentage depends on your jurisdiction. In New York, you can file your petition for pre-birth order of parentage at any time after pregnancy is achieved. For gestational surrogacy arrangements, your attorney will typically file your petition during the second trimester of pregnancy. The court needs time to review your surrogacy agreement, confirm that all legal requirements have been met, and schedule a hearing, in the judge’s discretion. Your attorney will prepare the petition and supporting documents for your review and signature. These include your gestational surrogacy agreement, proof that the surrogate received independent legal counsel, documents supporting that the surrogate conceived through assisted reproduction, and affidavits from all parties involved. Some counties and judges move more quickly than others. You want your signed order in hand at least a few weeks before your baby is due to be born so all interested parties and institutions can be provided a copy, including the delivery hospital. Failing to obtain a pre-birth judgment of parentage well in advance of the child’s expected due date creates unnecessary stress and potential complications at the hospital if your pre-birth order is not readily available.
Requirements Under New York Law
New York legalized compensated gestational surrogacy in 2021, which changed the game for intended parents pursuing gestational surrogacy. The Child-Parent Security Act established clear guidelines for surrogacy arrangements and securing legal parentage for children conceived through assisted reproduction. Pre-birth orders of parentage and post-birth orders of parentage are both possible in New York under the CPSA. The CPSA also set forth clear requirements for entering into a gestational surrogacy arrangement, and provides the most protective legislation in the United States for gestational surrogates outlined in the Surrogate’s Bill of Rights. It’s important to note that while the CPSA legalized compensated gestational surrogacy arrangements in New York, traditional surrogacy arrangements (in which the surrogate contributes the egg for conception of the child) are still prohibited.
How Legal Counsel Handles These Cases
Working with a New York Assisted Reproduction Lawyer who specializes in family formation law is essential for anyone navigating a path to parenthood that includes assisted reproduction or gestational surrogacy. You’re dealing with contracts, medical procedures, court processes, and administrative processes, all while preparing to have a baby! Your lawyer should anticipate and prepare for each step of the process on your path to parenthood, communicate with the surrogate’s counsel, file the petition in the appropriate jurisdiction, handle any questions raised by the court, and coordinate the birth and post-birth requirements. If a hearing is required, your attorney should prepare you and your partner for what to expect. The goal is simple. You want to walk into that hospital as recognized legal parents, ready to welcome your child without bureaucratic obstacles standing in your way.
Taking The Next Step
If you’re planning to grow your family through assisted reproduction or gestational surrogacy please reach out to Oleaga Law LLC to discuss the specifics of your arrangement. Janene is happy to answer your questions and ensure you are adequately informed.
