Getting a Parentage Order Entered Before Birth

A birth involves several decisions made quickly by people who have never seen the file: who signs the newborn's records, who consents to treatment, who takes the child home. A parentage order settles those questions in advance, and in states that permit it the order can be entered while the pregnancy is still under way.

What the order contains

Statutes describe the relief in terms of six directions. The order declares that each intended parent is a parent of the child and that parental rights and duties vest immediately on birth exclusively in them. It declares that the person acting as gestational surrogate, and that person's spouse or former spouse if any, are not parents.

It directs the state registrar of vital statistics to list each intended parent as a parent on the birth record. It may declare that the court record is not open to inspection except as the statute permits, to protect the privacy of the child and the parties. It may direct that the child be surrendered to the intended parents if that becomes necessary. And it grants any other relief the court finds proper.

Each of those items exists because someone previously needed it. The declaration that the birth parent is not a parent matters because a spousal presumption would otherwise attach. The registrar direction matters because vital records offices act on court orders and not on private agreements.

Timing and the stay

In states following the uniform model, a proceeding may be commenced before, on or after the birth, and the court may issue the order before the birth. Where it does, the court stays enforcement of the order until the child is born.

The stay is what makes a pre-birth order coherent. There is no child yet, so nothing to enforce; but the determination has been made, so the hospital and the registrar have an instrument to act on the moment there is. Nothing further is required from the parties at delivery beyond producing the order.

Statutes also relieve the parties of adding public agencies. In the uniform model neither the state nor the registrar is a necessary party to the proceeding, which keeps the case between the people who signed the agreement.

States that act only after birth

Not every state permits a pre-birth determination, and some that permit surrogacy handle the order afterward. Florida requires the commissioning couple to petition for an expedited affirmation of parental status within three days after the birth of a child delivered by a gestational surrogate.

The procedure is built for speed. The court fixes a time and place for hearing which may be immediately after the petition is filed. Notice goes to the gestational surrogate, the treating physician of the assisted reproductive technology program, and any party claiming paternity. On a showing that privacy interests may be endangered, the court may order names deleted from the notice and the attached petition. Hearings are held in closed court.

The practical difference for a family is the gap. Where the order comes days after delivery, the birth record is prepared in the interim and may be amended afterward, and decisions during the hospital stay rest on the agreement and on the hospital's own policies rather than on a court order.

Who appears and what is filed

The petition is usually short and its exhibits are not. Courts look for the executed surrogacy agreement, proof that each party had independent counsel, records of the required medical evaluation and mental health consultation, and confirmation of the residence or treatment connection that gives the court authority.

Where donated gametes were used, the file typically includes documentation that the donation was made through a licensed provider or under an agreement, because the order rests on the donor having no parental status. Where an intended parent's spouse is not a party to the agreement, the court will want that addressed as well.

Hearings are often brief and, in several states, held in closed court with the record restricted. Some courts decide on the papers where no party objects. What lengthens these cases is almost always a missing document rather than a contested issue, which is why assembling the exhibits before filing is worth more than an early filing date.

Parentage without a surrogacy agreement

Not every assisted reproduction case involves a surrogate. Where a person gives birth to a child conceived through assisted reproduction and another person consented with the intent to be a parent, statutes in the uniform model make that person a parent without any court order at all.

The consent must generally be in a signed record. Where it was not, statutes permit a court to find consent anyway on clear and convincing evidence of an express agreement entered into before conception, or on proof that the parties resided with the child and both openly held the child out as their own for a defined early period.

Families in that position sometimes still seek an order, because a judgment travels better than a presumption. The reasoning is the same one that leads some families to obtain both an order and an adoption, and it turns on where the family expects to live rather than on any doubt about the statute where they are.

What to settle before the petition

Three things determine whether the order is useful. The first is that the underlying agreement complies with the statute, since the court will look for the eligibility findings, the evaluations and the independent counsel described in the requirements that make an agreement enforceable.

The second is venue and jurisdiction. Statutes generally place the proceeding where a party resides or where the birth is expected, and the nexus requirements in the underlying agreement often decide the question in advance.

The third is the status of any gamete donor, because an order that declares the intended parents to be the only parents rests on the donor having no parental status. Where the donor is known and the arrangement was informal, that assumption may not hold, and the analysis in the conditions attached to the donor exclusion applies. Where no framework is available at all, the fallback route is an adoption, with the assessment described in the study and its requirements.