Legal Aspects of Surrogacy – Pre- and Post-Birth Orders
The Dad Hour Podcast
The Dad Hour Podcast was kind enough to invite Gery back to further the conversation surrounding the legal aspects of surrogacy, specifically pre- and post-birth orders. In this episode, Gery begins by explaining what pre- and post-birth orders are, the critical importance of each, along with the process in which they are filed.
What is a Pre-Birth Order
In the most basic terms, a pre-birth order is a legal document that ensures that when the child is born, the intended parents have legal rights to the child. In the state of Florida, a pre-birth order is not required, however, we cannot stress enough the critical importance of having a pre-birth order filed with the court. In the instance of not having a pre-birth order, a petition needs to be filed once the child is born to obtain a post-birth affirmation of parental status. You may be asking, what is the difference? It all comes down to timing. There is a time period between childbirth and the post-birth affirmation of parental status. When a pre-birth order has been filed with the court, the intended parents immediately obtain their parental rights the moment the child is born. This means that all physicians and hospital staff need to obtain consent from the parents, not the surrogate, as it relates to medical intervention with the baby. Additionally, the pre-birth order authorizes the hospital to discharge the baby to the intended parents.
Pre-Birth Order Process
When the surrogate is about 24 weeks gestation, we begin the petition process with the court. The petition that is filed includes a copy of the gestational surrogacy agreement, and an affidavit from the surrogate stating that she is not the parent of the child, if the surrogate is married, we include an affidavit from her husband as well. This petition is sealed to protect confidentiality and ultimately the child.
The pre-birth order states four very important things:
- The contract is enforceable by Florida law.
- The intended parents are the legal parents of the unborn child.
- Upon birth of the child, all medical professionals need to obtain consent from the parents as it relates to medical intervention with the baby.
- The hospital is authorized to discharge the baby to the parents.
Once the pre-birth order is obtained, a copy is sent to the parents, and a copy is sent to the surrogacy agency. This is done so that the agency can assist the surrogate with registering at the hospital and that the hospital can note that this is a surrogacy pregnancy.
What is a Post-Birth Order
A post-birth order is required by Florida law and is a petition that needs to be filed once the child is born to obtain a post-birth affirmation of parental status.
Post-Birth Order Process
Florida law requires that a post-birth order petition be filed. It is also important to note that Florida law requires that the surrogate be listed on the original birth record as mom. That being said, once the baby is born, we begin the final petition process with the court.
The final petition includes a copy of the gestational surrogacy agreement and information stating that the court has already seen this and has issued a pre-birth order. The petition states when and where the baby was born as well as the name of the child. We then ask the judge to please issue an order affirming parental status.
The judge will issue the final order affirming parental status. Once this is done, we submit this to the Department of Vital Statistics and request the following:
- Seal the original birth record.
- Remove the surrogate from the birth record.
- Add the parents to the birth record.
- Issue a new birth certificate for the child.
The Dad Hour Podcast delivers a newfound understanding of surrogacy’s legal intricacies. It provides a comprehensive, informative, and compassionate look at a subject that is close to the hearts of many, leaving listeners better equipped to navigate the complex journey of surrogacy.
