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


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

What is a birth order? A birth order is used in most gestational surrogacy pregnancies in the United States. Birth orders is a legal agreement that allows the intended parents to have full parental rights by having their names listed on the child’s birth certificate. Surrogates are protected because this pre-birth order is usually covered in the gestational surrogacy contract therefore releasing the surrogate from any parental rights. 

Obtaining a birth order is a lengthy process and can take several months Most agencies and intended parents work towards obtaining pre-birth orders at the end of the first trimester. The approved 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’s name). 

If a child is born before a pre-birth order is approved, the intended parents can file a post-birth order that offers the same legal protection all involved. Birth Orders are important because if not obtained, the intended parents 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. Some states have a more lengthy process than others. Many states have clear-cut situations and orders for each scenario (such as Arkansas, Texas, Florida, Oklahoma, Colorado, California, Nevada, just to name a few…), while some states have no specific laws at all. Many states do not allow traditional surrogacy (the use of the surrogate’s egg), but are generally favorable to gestational carrier pregnancies. 

States have separate laws governing over surrogate pregnancies, so intended couples should utilize their agency to be sure a birth order is obtained. Agencies deal with these legal concerns often, 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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