Establishing Parentage in Surrogacy

Understanding Pre-Birth Orders, Birth Certificates and More

While medical advances in surrogacy are moving quickly, the laws protecting intended parents can sometimes lag behind. As a result, you'll need to take additional legal steps when establishing parentage in surrogacy.

In this guide, we’ll walk you through how to secure your rights, the difference between pre-birth orders and post-birth orders, and how our team can help you through every step. You can also fill out our form for more free information.

Remember: This information is not intended to substitute legal advice. It's important to talk with your attorney and surrogacy agency if you have any specific questions about your journey.

How Parentage Is Established in Surrogacy

In a surrogacy arrangement, legal parentage isn’t assumed at birth. Even though you are the intended parent, you’ll typically need a court order to be legally recognized.

Depending on the state, you may be able to establish parentage before or after the baby is born through a pre-birth parentage order or a post-birth order. These orders allow your name to be listed on the child’s birth certificate and give you the full legal rights of a parent.

At American Surrogacy, we partner with trusted surrogacy attorneys who can guide you through these legal steps. Our team will also be there to coordinate with your lawyer and help you meet set deadlines.

What Is a Pre-Birth Order, and Who Qualifies?

So, what is a pre-birth order? A pre-birth order is a legal document issued by a court that recognizes you as the legal parent of your baby before birth. This process is available in many states and is commonly used in gestational surrogacy arrangements.

To qualify, intended parents and their surrogate will typically need to submit a set of legal documents. These may include signed statements of parentage from both parties, affidavits from your fertility doctor confirming the embryo transfer and evaluations prepared as part of your surrogacy agreement.

These petitions are usually filed around the seventh month of pregnancy but can sometimes begin as early as the fourth month, depending on state laws.

A pre-birth parentage order helps make your hospital experience much smoother by:

Listing you on your baby’s gestational surrogacy birth certificate
Allowing you to make medical decisions from the moment of birth
Easing insurance processing and coverage issues
Ensuring your baby is discharged directly to you

How Do You Get a Pre-Birth Order?

The process for how to get a pre-birth order varies slightly by state, but the general steps usually include:

Step 1: Hire an experienced surrogacy attorney.

This professional will guide you through each step of the legal process.

Step 2: File a petition for a pre-birth parentage order.

Your attorney will submit this paperwork to the appropriate court with supporting documentation.

Step 3: Attend a court hearing, if required.

In some states, the judge may approve the order without a formal hearing.

Step 4: Receive the court-approved pre-birth order.

This document affirms your legal parentage before your child is born.

Step 5: Obtain the official birth certificate after the baby is born.

Your name will be listed on the birth certificate, reflecting the terms of the court order.

When Are Post-Birth Orders Required?

In some states or situations, a post-birth order may be required instead. These are legal orders that establish parentage after the baby is born.

A post-birth order is more commonly used when state laws do not allow for pre-birth filings or when international surrogacy is involved. If you live in or are matched with a surrogate in one of these states, your legal team will begin the process shortly after delivery.

Regardless of the timing, your agency and attorney will work together to ensure the surrogacy legal process is handled smoothly and efficiently.

In Surrogacy, Who Goes on the Birth Certificate?

One of the biggest concerns intended parents have is who will be listed on the baby’s birth certificate.

In most cases, the goal of a pre-birth order or post-birth order is to ensure that you, as the intended parent, are listed correctly. Depending on the state, the certificate labels intended parents as “Parent,” “Mother” or “Father.”

If your state doesn’t allow for changes before birth, the certificate may initially list the gestational carrier. Once the legal process is complete, an amended certificate will be issued with your information.

Why Surrogacy Contracts Are Key to Establishing Parentage

Legal parentage starts with a strong foundation: your surrogacy contract. This agreement outlines each party’s roles and responsibilities, and it’s critical for obtaining a court-approved parentage order.

Without a clear, enforceable contract in place, courts may hesitate to issue a parentage order. That’s why working with an experienced surrogacy agency and attorney is so important.

State-by-State Differences in Parentage Laws

Parentage laws vary widely across the U.S. Most states do not grant parental rights to egg and sperm donors. However, some assume that the person who gives birth is the child’s legal parent — a concept known as "marital presumption.” If the surrogate is married, her spouse may also be presumed a legal parent.

This can make things more complicated, but don’t worry. With expert legal help, you can overcome these hurdles.

Our team understands how important it is to protect your rights. That’s why we partner with professionals who specialize in navigating these legal nuances.

Learn more about your state’s surrogacy laws.