A critical step in the surrogacy process is obtaining a pre-birth order (PBO) from a state court. This parentage order officially recognizes the intended parents (IP) as the legal parents of the child born through surrogacy. Washington is a pre-birth order state, meaning the parentage order from court is granted before the child's birth. Parties must show they have complied with WA law, which is outlined in our blog “Legal Requirements for Surrogacy Agreement in Washington.” Our blog titled "What is a Pre-birth Order?" outlines the distinctions between a pre-birth order and a post-birth order.
I. When Should a PBO be Started?
The PBO process can take upwards of 8 weeks, so preparing the paperwork when the gestational carrier is around 20 weeks pregnant is ideal. This allows for adequate preparation time and time to ensure all the information is correct. If any party requests changes to the PBO forms, we will be able to make those changes without an emergency motion.
II. What is needed to start the PBO process?
The process to get a PBO in Washington begins with obtaining information from all parties. An intake form is sent to the surrogate’s attorney or the agency where she will fill out identifying personal information and delivery hospital. Information will also be needed regarding the surrogate’s spouse. This PBO intake form will ask for an updated mailing address so that certified copies of the judgment can be sent. Washington requires that the surrogate and surrogate’s spouse provide their driver’s license number and state, employer’s name, address, and phone number, and date of birth. Some personal information will be provided to the court, but this will be confidential and only a party to the case will have access to what is filed with court.
III. Preparing the PBO Forms
Next, IP’s attorney will prepare all forms necessary for the specific venue in Washington. These forms will request that the court issue an order stating the intended parents are the legal parents. Each county may have different local forms, so an attorney who is experienced with filing PBOs in Washington will ensure all forms are completed. The forms signed by the surrogate will state that she is not the parent of the child, and the legal parents are the intended parents. This means that the surrogate agrees that she has no legal rights over the child. All parties will review and sign the PBO paperwork which requires coordinating with the surrogate’s attorney. Some counties like Pierce, King, and Snomish, offer electronic filing, and in these counties electronic signatures will also be accepted.
IV. Filing the Action
After the signing of all forms is completed, the preparing attorney will file the documents to the court. Next, the court will review and accept the filing. In some counties, the filing attorney will need to schedule a hearing to be held in front of a judge while others will consider the PBO without a hearing. Some courts will not require the parties to appear, but, sometimes, a remote appearance may be required. After reviewing the filings, the judge will sign the judgment and grant the PBO.
V. What if the baby comes early?
The court often takes one month to grant the pre-birth order. Sometimes babies are born sooner than expected but a competent attorney, like those at Tsong Law Group, will be able to file an emergency hearing. This emergency hearing is called an ex parte which requests the court to review the paperwork usually the next court day. The ex parte will notify the court that the parties are requesting an earlier hearing date for the specified reason.
VI. Receiving Certified Copies
After the judgment is issued, the last step is for the attorneys to request certified copies of the findings and order and the parentage judgment. Since the court file is sealed, a special request has to be made by the attorney. A certified copy will be provided to the hospital where the birth takes place, this will be sent to vital statistics so that the birth certificate will reflect in the intended parents’ names. Additional certified copies may be kept by the surrogate and intended parents should they ever need to prove the parentage of the child.
Conclusion
The pre-birth issued by a judge establishes the intended parents as the legal parents of the baby born to the surrogate. Attorneys at Tsong Law Group are licensed in Washington and have experience and success in obtaining PBOs. Contact us for assistance in the PBO preparation process in your surrogacy case.
