Completing a surrogacy journey in California will require a pre-birth order before the child is born. A pre-birth order, also known as a parentage judgment, is a court ordered judgment that establishes the intended parents as the sole parents of the unborn child and not the surrogate and her partner, if any. Check our previous blog “What is a Pre-Birth Order” to learn what a PBO is.
1. When Should a PBO Be Started?
A PBO takes time to both prepare, to be signed by the parties, accepted for filing, and then reviewed by the judge and signed. Typically, the California PBO process can take 8 weeks from start to finish. Given the time needed, most intended parents want to start on a PBO by 20 weeks of pregnancy or earlier as there is a chance the baby may be born prematurely.
2. What is Needed For a PBO?
The process to get a PBO in California begins with your attorney gathering all the required information to complete the pleadings and forms.
A. Information relating to the Gestational Carrier
This includes the names, partner/spouse name, address, and her attorney’s information.
B. Information about the Intended Parents
In some counties in California, a background check of the Intended Parents is needed. International intended parents will need to provide their passport and a national ID for an international background check, while domestic intended parents can complete the background check online. Other information will be needed such as their full names and marital status.
C. Information about the Pregnancy
California law requires that the surrogacy contract list the source of the egg and sperm used to create the embryo and this information is provided to the court. The attorney will also need information such as the date of the embryo transfer, the expected due date, how many embryos were transferred, how many fetuses the surrogate is carrying, and who did the embryo transfer.
We know that the information being provided may be sensitive. Don’t worry, under California law, the court proceedings are confidential and only a party to the case can have access to the case or the court filings.
3. Preparing the Pleadings
After this information is gathered, the intended parents’ attorney will prepare pleadings and forms using this information. The pleadings and forms will request that the court issue an order finding the parentage of the unborn child carried by the surrogate in favor of the intended parents. A declaration will be prepared for the IVF physician to sign stating that they performed the embryo transfer and are certain that the child being carried is from the intended parents’ embryo. Other declarations will be signed by the intended parents, surrogate and her husband and the attorneys stating facts that show the contract was in compliance with California law, and that the child is the intended parents’ child. There will be several forms and pleadings prepared that also allow the parties to stipulate to an uncontested matter and allow the court to decide the parentage without a hearing.
4. Filing the Action
Once all the forms and pleadings are prepared, signed by the parties, the case is ready for filing. In some California counties, everything is filed all at once, and the intended parents pay for the filing fee of both their filing and the surrogate’s response. In a smaller number of counties, the intended parents’ paperwork is filed first, then once confirmation it is accepted, the surrogate’s paperwork is signed.
The next step is waiting for the court to review. Some courts will schedule a hearing and usually the parties are not required to appear, and then sign the judgment at the hearing date. Others will simply review the judgment usually in order that the case was filed. This typically takes a month though some counties are faster or slower than others.
5. What if the Baby Comes Early?
A month it typically takes for the court to grant the pre-birth order can be a long time, and sometimes babies are born earlier than expected. Not to fear, a competent attorney will be able to handle this, usually by filing an emergency hearing called an ex parte, to get the court to review the paperwork usually the next court day.
A pre-birth order issued by the court is necessary to establish the parentage of the intended parents and the child carried by the surrogate. As attorneys licensed in California, we are experienced and reliable in obtaining prebirth orders. Contact us today for your surrogacy case.