The Parentage Process

How legal parentage will be established for any child that is born from assisted reproductive technology is something that should be mapped out at the very beginning of the arrangement. Doing so is absolutely crucial to ensure that the intended parent(s) will have full parental rights to the child, and that the gestational carrier or surrogate (and the spouse if any) have no parental rights or responsibilities. How legal parentage gets established generally depends on the laws of the state where the child will be born. This means that the parties should 1) consult and retain legal counsel in that state, and 2) establish where the child will be born as part of the agreement, so that everyone can plan accordingly.

  • Pre-Birth Orders. Some states allow for courts to issue pre-birth orders in gestational carrier arrangements. These “PBOs” are obtained prior to the child’s birth, and they order that the intended parent(s) will be recognized as a child’s only legal parent(s) and will be placed on the child’s birth certificate. In some cases, if a baby is going to be born in a state that does not issue PBOs, but the intended parents live in a state or the embryo transfer procedure is taking place where a PBO can be obtained, then a PBO might be obtained from one state and then be domesticated and given full faith and credit in the state of birth. That process might require some additional legal steps after the birth given the differences in the state laws.
  • PostBirth Parentage Orders. A post-birth parentage order is similar to a pre-birth order except that it is just obtained after the birth instead of prior to the birth. The post-birth parentage order also establishes the intended parent(s) as the child’s only legal parent(s), and orders them placed on the child’s birth certificate. Genetic testing might be required in order to obtain this order. Also if one intended parent is not a genetic parent then oftentimes a step-parent adoption will be done (as to the non-genetic spouse) in conjunction with getting this order. Although there will be a gap in time between when the baby is born and legal parentage is established, the intended parents still take custody of the child immediately from birth and are responsible for the child. The gestational carrier or surrogate can execute a health care power of attorney (or similar) document in the hospital to ensure that the intended parents get to make all medical decisions for the baby.
  • Administrative Processes. In certain cases, some states have established administrative processes that allow intended parents to establish legal parentage for their child and place their names on the birth certificate, and for surrogates (and their spouses if any) to ensure they are relieved of any parental rights and responsibilities after birth. These often involve forms and/or affidavits that get filed directly with a state’s vital statistics office, so that the state knows who to list on a child’s birth certificate. When these processes are used, the parties do not get a court order. Therefore, same-sex couples always should make sure to check with their attorney before relying completely on an administrative process, as it is advisable to also obtain a court order to ensure full and secure protection of the parentage.
  • Issues with No Genetic Relationships. In some states where the intended parent or parents have no genetic connection to the child (because a donated embryo or donor egg and sperm are used), rent is a genetic parent), it might be possible to obtain a pre-birth order. However, in many states an adoption will be required.
  • Foreign Intended Parents. Intended parents from other countries who utilize gestational carriers from the United States not only should consult with a U.S. attorney, but also with an attorney in their home country to determine what specific documents they will need to return home with their child. They should also consult with a qualified immigration attorney to make sure that they will not have any issues establishing citizenship for the child.
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