Intended Parents often ask me what the birth certificate process will be like when their child is born via gestational surrogacy. How long will it take? Will the surrogacy or surrogate be referenced on the birth certificate? What can I name the child? Well… some of those questions have a standard answer, but for others, it all depends on the state of your child’s birth and their laws regarding parentage in a gestational surrogacy.
In a few states, so long as there is proof of a valid surrogacy contract and some administrative paperwork is filled out, the birth certificate will be filled out at the hospital just like for any other birth. However, most states are not like this.
In other states, the attorney must obtain a signed judicial order prior to the birth, affirming the Intended Parents’ parentage over the child, which then allows the hospital to proceed with the birth certificate at the birth with the Intended Parents’ names on it.
My area of practice, and therefore where I can go in depth, is Florida. Florida, like many other states, is a “post birth” state as dictated by Florida’s gestational surrogacy statute. This means the attorney must obtain a signed judicial order affirming the Intended Parents’ parentage over the child after the birth of the child. What does this mean for you?
The birth certificate process starts with the child’s birth. Upon birth, the Intended Parents must notify their attorney that their child is born (sometimes the Agency will do this) so that the attorney can schedule the hearing with the judge.
After the birth of the child, a social worker from the hospital will come to the room to fill out a certificate of live birth as is customary for any Florida birth. This certificate is the information that the hospital sends to the office of Vital Statistics in Jacksonville, Florida to create the birth certificate. The social worker will fill out the information with the person who gave birth (the surrogate) and the child’s name will go on as the Intended Parents want the child’s name to be. Often times the Intended Parents get nervous that the surrogate’s name goes on the certificate of live birth, however this is not a cause for concern as it does not grant her any rights or responsibilities, nor does it determine what goes on the birth certificate which will be mailed to the Intended Parents. It is merely a technicality and her name will be eliminated as soon as Vital Statistics receives the judicial order from the attorney.
It is important to note that the child’s name can be whatever the parents want it to be. There is a space for a first name, a middle name, and a last name. Many international Intended Parents often wonder if there are rules regarding what the child’s last name can be or whether the child can have two last names. In the United States, there are no rules dictating what your child’s last name must be nor is there a limitation to one last name. Although it is common to have only one last name in the United States, you can give your baby two. However, if your child’s name includes a tilde (´), the birth certificate does not automatically include tildes in the names printed since it is not a punctuation mark included in the standard English language. The names will appear in all capital letters, so the absence of a tilde may not be of concern to you.
After filling out the necessary information, the social worker will make a note for Vital Statistics that the certificate of live birth is for a surrogacy birth and it will be sent to Vital Statistics. This note will let Vital Statistics know that there will be a judicial order joining this information in order to create the correct birth certificate with the correct parents’ names on it.
As soon as possible after the birth, the attorney will set an expedited hearing to have the judge sign the order affirming the Intended Parent’s parentage over the child. When the hearing can be set depends on the jurisdiction the attorney is in, as every courthouse schedules these hearings differently. In my jurisdiction, I can get a hearing within 1-5 business days after the birth.
At the hearing, so long as everything is done in accordance with Florida statute for the surrogacy, the judge will affirm the parentage at that hearing and sign the order. The attorney will have the order signed that same day, although sometimes it may take a couple of days. This timeline depends on the jurisdiction in Florida where the hearing takes place. In my practice for example, I have the order signed, and in my possession, that very same day.
Once the signed order is obtained, the attorney will mail it out to Vital Statistics so that it is matched up with the certificate of live birth the hospital sent. This order is sent to Vital Statistics along with other required paperwork and the required payments to obtain the birth certificate.
Once Vital Statistics receives the judicial order, they will match it up to the certificate of live birth and amend the birth certificate to correctly reflect the legal parents of the child. They will put the Intended Parent’s names on the birth certificate as the parents. The surrogate’s information will never show up on the birth certificate once it is amended. Additionally, the birth certificate will never indicate that there was a surrogacy birth at all, and it looks like a standard United States birth certificate for that state.
For same sex couples it is important to mention that the designations on the birth certificate have yet to be changed by the government to reflect same sex parentage accurately. For now, the birth certificate states “Mother/Parent” and then the first parent’s name and information and then “Father/Parent” and then the second parent’s name and information. Although the “/Parent” was added to be inclusive of mother or father, the words “Mother” and “Father” are still included as designations. There is no way currently to remove those.
Once the birth certificate is amended, Vitals will send the birth certificates to the address you or your attorney indicate on the application.
Once the child is born, the hearing must be set which can take 1-5 business days (this is what it takes in my jurisdiction). After the hearing, the order and applications are sent to Vitals and once Vitals receives the documents it will take them 7-10 business days if you pay the $10 “rush” fee, otherwise it can take longer. The website is very clear however that 7-10 business days is a guideline and depending on the circumstances it could take less time or more time. In my experience however, it is usually within the 7-10 business day range.
Due to the variability of the timeline there is no guaranteed number of days to expect the birth certificate, however it is generally within 3 weeks of the birth and well within the timeline allotted to be able to add your child to your medical insurance.
Once you have your birth certificate you can add your child to your medical insurance, you can always obtain copies, and/or you can inquire with your attorney about getting apostilled copies for a foreign country. Most importantly, remember that although there are a number of administrative steps to take for the birth certificate process most states have their own protocol. This process can vary greatly depending on the state of birth, so make sure to discuss this with a reproductive attorney in your state so you are fully informed.
For more information contact Stephanie directly