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  • Writer's pictureRalph M. Tsong

What is a Pre-birth Order?

pre-birth order

A Pre-birth Order, often called a "PBO," is a legal petition filed in court that requests the court rule that the intended parents are the legal parents of the baby carried by a pregnant gestational surrogate. This happens before the baby is born. On the other hand, a post-birth order is a similar court process, sometimes started before birth, but it is a process where the court grants the legal parentage judgment after the baby is born. 


When your lawyer or agency says, "We are preparing the PBO," they mean they are preparing the necessary legal parentage pleadings to file with the court. The term "pre-birth order" can refer to the actual court decision, but it often refers to the paperwork setitng that up. 


When a pre-birth order is signed by the court, it is sent to the hospital, accompanied by a letter from the attorney stating that the intended parents should be acknowledged as the legal parents in the surrogacy case. The judgment also states that  the gestational carrier and her spouse will not be listed on the birth certificate or have any legal rights over the child. With this order, the intended parents can complete the birth worksheet or birth certificate, officially listing them as the parents on the only birth certificate for the child.  


In contrast, post-birth orders are granted after the baby is born. In some states, this means the birth certificate might name the gestational carrier as the mother. The post-birth order will order the state’s department of health to seal the original birth certificate and issue a new one, officially recognizing the intended parents as the legal parents of the child. 


Whether a pre-birth or post-birth order will be requested depends on the laws and courts of the surrogate's state. In some states, like Washington, California, and Oklahoma, the courts issue pre-birth orders. In these states, the court declares the intended parents as legal parents before the baby is born. On the flip side, other states like Texas and Florida are post-birth order states, where the legal judgment does not issue until after the baby is born. It's crucial for your lawyer to know the parentage process in the state of the surrogate.  

  

Other states like New York and Illinois have administrative processes that allow issuance of birth certificates in surrogacy outside going through a court proceeding. However, if the intended parents need a court judgment affirming their parental status, they can pursue a post-birth judgment in Illinois or a pre-birth order in New York.  


Is there a disadvantage to using a pre-birth order or post-birth order?  

In most cases, there's no real downside to choosing a pre-birth order or post-birth order state. The result is the same: the birth certificate reflects the intended parents as the legal parents, not the surrogate. This is a consistent outcome in both types of states. 


For some international intended parents, there may be different requirements or needs for a pre-birth or post-birth order. For some intended parents, having a pre-birth order may be helpful for obtaining a visa; this was the case during COVID-19 times when certain travelers could not obtain visas to the US. In France, a post-birth order is required to recognize the parentage, so in pre-birth order states, a second order is requested.  


Tsong Law Group’s attorneys are well versed in preparing pre-birth and post-birth orders. Connect with the expertise of our experienced attorneys licensed in California, New York, Illinois, Washington, Arizona, and Oklahoma. Contact us now for your surrogacy legal needs. 

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