What Happens If the Surrogate Delivers Early? How Surrogacy Lawyers Prepare for Early Births

Sometimes, a surrogate birth happens earlier than the estimated date. While it sounds alarming, for intended parents and their attorneys who have been informed along the way, it should not be a crisis.

After a gestational surrogacy contract is complete, the legal timeline does not end there. The next key step of a surrogacy journey is a prebirth order. The prebirth order, also called a “PBO,” is one of the last steps in a legal journey. The timing of PBO matters, as it ensures that the legal parentage is established before the child is delivered. In many cases, the process of a PBO can take longer than the contract stage of the legal journey. In this article, PBO will refer to the entire case filing rather than the judgment of parentage, which it can also refer to.

Once an embryo transfer results in a pregnancy, the legal side of your surrogacy journey may start in motion again in preparation for PBO, but when it restarts depends on different considerations of the intended parents and realities on the ground.

Here's what intended parents can expect at each stage following the embryo transfer, and why informing your attorney to start preparing PBO documents at the right moment makes all the difference.

Notice of Pregnancy, Around Week 13

As attorneys, we are sometimes informed of a positive fetal heartbeat pregnancy, which is typically six or seven gestational weeks. This is a great milestone for you and your surrogate to reach, but in general, it may still be early to start the PBO. On rare occasions, intended parents start the PBO at fetal heartbeat, but as there is still a significant risk of miscarriage, it is only with specific requests that we would start the PBO. 

A more significant milestone for the PBO process is when the gestational carrier "graduates" from the IVF clinic's care to her own obstetrician (OB), which usually happens around 13 weeks. At that point, you or your agency should let your attorney know the pregnancy is confirmed and ongoing. 

The Intake: Gathering What the Court Will Need

Once your attorney has notice of the pregnancy and the gestational carrier’s graduation to the OB, they'll send an intake for you or your agency to complete. This intake collects the information needed to prepare a prebirth order in states that allow one. Even in postbirth-order states, your attorney will gather information and prepare the postbirth order paperwork in advance, so there will be no delays in getting documents signed.

Filing At or Before Fetal Viability

Some intended parents prefer to wait on starting the PBO until the anatomy ultrasound, which typically occurs between 18 and 22 weeks of pregnancy. Once it is confirmed that the pregnancy has progressed well and is free of abnormalities, the intended parents ask their attorney to file. Others will request preparing the PBO before the anatomy scan.  Both approaches can be reasonable, but the right choice may depend on other factors, such as how long the local courts tend to take, and how long the parties may take to review the PBO paperwork before signing. Some courts can take two months or more to actually issue a PBO judgment on their own. This has to be considered so the attorneys have enough time before the due date in order to obtain a judgment. 

When unsure, it may be helpful to ask your attorney how long the court could take to issue a judgment once a PBO is filed, and factor in an extra month in terms of preparing a PBO. This way, you are less likely to be caught off guard if delivery happens early. 

Another possible timeframe to take into consideration is when a fetus is viable.

What "viability" Actually Means

Viability means a baby has a real chance of surviving outside the womb with intensive care. Doctors generally put that threshold at 23 to 24 weeks, and doctors call the stretch from 22 weeks 0 days to 25 weeks 6 days the 'periviable period.’ Survival is possible in that window, but unfortunately uncertain.

Survival improves fast, week by week, during the periviable period. In NICHD's Neonatal Research Network data, infants who received active treatment survived to discharge at roughly 30% at 22 weeks, 55–56% at 23 weeks, 70% at 24 weeks, and 80% at 25 weeks, climbing quickly from there.

Even the American College of Obstetricians and Gynecologists (ACOG), the leading OB/GYN professional group, says there's no single week that works as a date of viability, and has warned against writing one fixed number into law. That's part of why the legal process doesn't wait to pin down an exact medical moment of viability. Preparing to file at or before this window is how a judgment can be signed in time for a premature but still viable birth.

Since you may only know the number of weeks since the embryo transfer rather than the date of a last period given the period suppression medication while using IVF, our IVF calculator can convert your transfer date into a current gestational week as well as calculate the date of a specific gestational week.

If Labor Starts Early

Even if the attorney has filed a PBO with the court or has obtained the judgment, intended parents or the agency should notify the attorney right away if the gestational carrier goes into labor or the delivery is expected to occur prior to the previously estimated date. This allows your attorney to best advise you regarding the next steps, including notifying the hospital and preparing documents for issuing the birth certificates after the child is born.

If the judgment is already in hand, the process is usually straightforward. You can work with your attorney to notify the hospital and confirm any paperwork it requires to list the intended parents on the birth worksheet, if applicable. This will allow the intended parents to be recognized on their child’s birth certificate. 

If the attorney doesn’t have the parentage judgment, this is the point where people worry the most, but it's worth observing that in most states, you do not need to panic. Vital records offices don't require a completed birth certificate right away. In California, for example, you generally have about two weeks; other states' timelines vary: some may have no hard deadline to issue a birth certificate. What matters is that your attorney knows the baby is arriving. From there, they can call the court to see the status of the judgment and decide whether to seek an emergency order to obtain the judgment. Emergency orders can be granted very quickly. 

In addition, in the event of an early delivery, the attorney can often notify the hospital about the filed PBO and pending judgment and prepare a power of attorney (“POA”) if the hospital requires one. A POA allows an agent designated by the intended parents to visit the child and make medical decisions on behalf of the intended parents in the interim. This is especially useful as an emergency safeguard when intended parents cannot quickly arrive at the hospital. Some hospitals allow visitation or medical decision-making without a POA, but sometimes it is hard to ascertain this, and a POA can often come in handy when the hospital wants additional documents for their records.

For Gestational Carriers: When to Contact Your Attorney

If you're the gestational carrier, let your attorney know if you're past 20 weeks and haven't received your parentage order paperwork, and especially let them know if a delivery looks imminent. Sometimes, the intended parents or agency simply forget to loop the attorneys in, or tell them about the latest changes in delivery date, so if you haven’t heard anything from your attorney, you can tell them yourself. Even if the intended parents’ attorney is responsible for the PBO, speaking to your attorney can make sure that they get the important updates and be able to remind other parties when necessary. 

Multiples Move Up the Timeline

If the gestational carrier is carrying more than one baby, all of the above matters even more. Assisted reproductive pregnancies deliver preterm more often than the general population to begin with, and that gap widens considerably with twins or higher-order multiples, well into the periviable range discussed above. That means less time between filing and birth, and more reason to file earlier in the pregnancy. If you are expecting twins or more, treat every one of the previous points as more urgent, not less.

Conclusion

A successful PBO relies on proper case management. An early delivery will not jeopardize your surrogacy journey if the legal preparation is managed in organized stages rather than all at once.  Keep your attorney informed at each of these points: pregnancy confirmation, the intake, filing, and any change in delivery timeline. It can take weeks for a PBO to be prepared and weeks or longer for a judgment to issue depending on the court it is filed in. Your attorney should be experienced enough to factor in signing delays and court delays when considering when to start a PBO.

Choosing the right attorney matters: if you have, you shouldn't have to worry about the legal side even if the baby comes early. In our experience, we have never had a case where we handled the prebirth order and the judgment failed to issue, leaving a child with no legal parents or the gestational carrier as the legal parent by default. Tsong Law Group specializes in assisted reproduction law across the United States, with attorneys licensed in California, New York, Washington, Arizona, Oklahoma, and Illinois. We help intended parents and gestational carriers navigate every stage of the legal process, from pre-birth orders to parentage judgments. If you're building your family through surrogacy, contact our team to schedule a consultation.

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This article is for general educational purposes and is not medical or legal advice. For guidance specific to your pregnancy, talk to your OB or maternal-fetal medicine specialist.