Birth Orders: Protecting the Parents, Gestational Carriers, and Child


The surrogate journey for surrogates and intended parents isn’t without legal hurdles both must overcome. But these legal agreements offer a layer of protection for the surrogate mother, the parents, and most importantly, the child. It is vital that the intended parents obtain a birth order so all parties are protected.

A birth order is used in most gestational surrogacy pregnancies in the United States. Birth orders allow for the intended parents to have full parental rights by having their names listed on the child’s birth certificate. Surrogate mothers are protected because this pre-birth order is usually covered in the gestational surrogacy contract therefore releasing the surrogate from any parental rights.

The process to obtain a birth order can last several months, so most agencies/intended parents start the steps to obtain pre-birth orders at the end of the first trimester. Once approved, the birth order directs the hospital where the child is born and the state department of vital records to list the parent’s names on the birth certificate (not the surrogate mother’s name).

Should the child be born before a pre-birth order is approved, the intended parents can file to obtain a post-birth order that offers the same legal protection for the intended parents and surrogate mother. If the intended parents chose not to obtain an order, they may be forced to adopt their child because the gestational carrier’s name may have been placed on the birth certificate.

The process of obtaining a birth order varies by state, with some states proving to have a more involved process than others. Many states have clear-cut situations and orders for each scenario (such as Arkansas), while some states have no specific laws. Many states forbid traditional surrogacy (the use of the surrogate’s egg), but are generally favorable to gestational carrier pregnancies.

Because each state has separate laws governing over surrogate pregnancies, intended couples should utilize their agency to be sure a birth order is obtained. Agencies deal with these legal concerns day in and day out, and will be able to act as the intended parent’s advocate in gaining the pre-birth order.

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Surrogate Solutions works with couples every day to help achieve their dream of being parents, including assisting in navigating the legal issues of a gestational surrogacy and the process of obtaining birth orders. We know that you may have additional questions, so please contact us today and explore how surrogacy may be an option for you.

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