Who is on the birth certificate when we use a surrogate?

Intended Parents who opt to use a gestational surrogate often have questions regarding their legal standing as parents. One key question that comes up is: whose names will appear on the child’s birth certificate?  

In many surrogacy-friendly states like California, New York, Washington, Arizona, and Oklahoma where Tsong Law Group is licensed, intended parents are to establish their parental rights through a pre-birth order.  You or your agency should inform your attorney that your surrogate is pregnant, so the attorney has time to prepare a pre-birth order.  

Once the lawyer obtains a pre-birth order from the court, this court judgment will instruct who will appear on the birth certificate worksheet. The pre-birth order will require hospitals to allow the intended parents to complete the birth worksheet at the hospital and orders that the intended parents be listed as parents on the original birth certificate. A pre-birth order in a state which accepts it means that the intended parents are the parents at birth. Pre-birth orders allow intended parents to have full custody and parental rights to the child and the intended parents do not need subsequent orders. 

However, not all states are pre-birth order states.  Other states like Utah, Texas, Oregon and Florida are post-birth order states, where the legal judgment for parentage is issued after the baby is born. In Florida and Tennessee, the non-genetically related intended parent or couples may have to do a post-birth adoption rather than a post-birth order.   

As we have discussed in our blog about pre and post-birth orders, in some post-birth order states, the birth certificate may originally be in the surrogate’s name, and after the post-birth order is granted and received by the state’s vital records, the original birth certificate may be sealed and replaced by one with intended parents’ names. Intended parents will thus end up on the birth certificate and the gestational surrogate should not be on the birth certificate.     

Conclusion: 

Every surrogacy friendly state in the United States has specific procedures to establish parentage and allow intended parents to be on the birth certificate. To not have the surrogate and their spouse be on the birth certificate, it is important to consult with your attorney on the applicable state’s laws.  

Every surrogacy journey is different so consult with Tsong Law Group. Our attorneys are well versed in surrogacy laws and licensed in California, New York, Illinois, Washington, Arizona, and Oklahoma. Contact us now for your surrogacy legal needs.