Understanding Pre-Birth Orders in New York
In February 2021, New York made a historic shift by legalizing compensated gestational surrogacy under the Child-Parent Security Act (CPSA). This landmark law not only protects the rights of surrogates but also provides a clear legal pathway for intended parents to establish parentage through pre-birth orders (PBOs).
If you’re considering surrogacy in New York, understanding how pre-birth orders work is essential to ensuring that your parental rights are recognized from the moment your child is born. This guide will walk you through what a pre-birth order is, why it matters, and how the process works in New York.
What is a Pre-Birth Order?
A pre-birth order (PBO) is a legal document issued by a New York court that establishes the intended parents as the legal parents of a child born through gestational surrogacy before the baby is born. This legal order is crucial because once granted, it allows the intended parents’ names to appear on the child’s birth certificate immediately after birth, ensuring that they have full parental rights from the start. Without this legal safeguard, the birth certificate could initially list the surrogate as the child’s legal mother, a situation that could lead to unnecessary legal complications and emotional stress. In traditional birth, the woman who gives birth to the child is presumed to be the child’s legal parent. This presumption can create legal ambiguity in surrogacy, particularly in gestational surrogacy, where the surrogate has no genetic connection to the child. Therefore, the pre-birth order process in New York is a crucial legal step for intended parents and surrogates, offering clarity, protection, and peace of mind for all parties involved.
Protecting the Intended Parents
The pre-birth order ensures that the intended parents have immediate legal rights and responsibilities for the baby at birth. This includes the right to make medical decisions for the newborn, the ability to be present in the hospital during the delivery and the assurance that their names will appear on the birth certificate. This legal recognition is essential for a smooth transition into parenthood and provides peace of mind throughout the birth process.
For example, if a medical decision needs to be made for the newborn immediately after birth, the intended parents can make that decision without delay or confusion, thanks to the pre-birth order.
Protecting the Surrogate
The pre-birth order protects the surrogate by legally confirming that she is not the child’s legal parent. This eliminates any potential legal obligations or responsibilities for the child after birth. It also prevents situations where the surrogate might be required to take legal action to remove her name from the birth certificate. The pre-birth order respects the surrogate’s role as a vital part of the process, while still ensuring that she is not burdened with unintended legal consequences from being presumed as the child’s legal parent.
Ensuring Accuracy on the Birth Certificate
With a pre-birth order in place, the intended parents’ names are automatically listed on the child’s birth certificate. This avoids the need for post-birth legal proceedings to amend the certificate and ensures that the birth certificate is accurate from the start. In New York, the pre-birth order directs the New York Department of Health to issue a birth certificate listing the intended parents, regardless of their genetic connection to the child. This is a significant advantage for intended parents using donor gametes or embryos.
Avoiding Post-Birth Legal Complications
Without a pre-birth order, intended parents might need to take additional legal steps after the birth to establish parental rights. This could involve adoption or a post-birth parentage order, which can be time-consuming and emotionally draining. A pre-birth order eliminates this risk, offering a more straightforward and efficient path to parenthood.
Facilitating a Smooth Hospital Experience
A pre-birth order plays a critical role in ensuring a seamless experience at the hospital. Hospital staff are informed in advance that the intended parents are the legal parents, allowing them to participate fully in the birth process and take custody of the baby immediately after birth. In New York, hospitals are legally required to honor pre-birth orders, which significantly reduces the likelihood of confusion or delays during the birth process. The order also grants the intended parents the right to be present in the delivery room and take the baby home directly from the hospital.
Who Gets a Pre-Birth Order in New York?
Under the Child-Parent Security Act, a pre-birth order is obtained by the intended parents, regardless of their background. This means that virtually anyone who is using surrogacy to grow their family is eligible to have a pre-birth order. A key feature of New York law is that there is no requirement for a genetic connection between the intended parent(s) and the child, making the process inclusive for intended parents using donor embryos.
However, to obtain a pre-birth order in New York, the surrogacy arrangement must comply with the CPSA’s requirements. This includes ensuring that the surrogacy contract is valid, the surrogate meets the eligibility criteria set out within the CPSA, and both parties have independent legal representation.
How is a Pre-Birth Order Obtained?
The process for obtaining a pre-birth order in New York involves several key steps:
Drafting and Executing the Surrogacy Agreement
The first step in the process is creating a legally valid surrogacy agreement that complies with the CPSA. This agreement must be signed by all parties (the intended parents and the surrogate) before the pregnancy begins and must meet specific legal requirements, such as providing for the surrogate’s right to make decisions about her health and requirement health insurance coverage for the surrogate.
Filing the Petition for a Pre-Birth Order
Once the surrogate is pregnant with a viable embryo, the intended parents’ attorney will file a petition for a pre-birth order with the family court in the county where the surrogate resides, or where the child will be born. The petition must include the details of the surrogacy agreement, medical proof of pregnancy, and statements from the intended parents and surrogate affirming their understanding and consent to the arrangement.
Court Review and Issuance of the Order
New York courts are generally favorable to pre-birth order petitions that meet the CPSA’s requirements. In many cases, the court will issue the pre-birth order without the need for a court hearing. Once granted, the order ensures that the intended parents are the legal parents of the child from birth.
A court appearance may be required to grant the pre-birth order, however. In cases where there are questions about the validity of a surrogacy agreement, or the judge wants more clarity on the facts of the case, they may require a court appearance to iron-out the facts. Additionally, if there is existing conflict between the intended parents and the surrogate, a court appearance may be required to identify the points of contention and ensure that both sides have their interests and concerns, in connection to the pre-birth order, raised.
In New York, the pre-birth order process can be lengthy, and should be started early in the second trimester, when the pregnancy has passed the riskiest trimester of pregnancy. On top of reducing the risk of losing the child that is the subject of the pre-birth order, this also allows time to gather the necessary documents for the petition, the filing of the petition, and the resolution of any unforeseen issues before the baby’s birth.
What Happens After the Pre-Birth Order is Issued?
Once the pre-birth order is granted, the legal groundwork for the surrogacy process is complete, but there are several important steps that follow to ensure a smooth transition from birth to parenthood. The PBO establishes the intended parents’ legal status before the child’s birth, and its effect begins as soon as the baby is born. In this section, we will explore some of the next steps:
Hospital Coordination and Birth Plan Implementation
After the pre-birth order is issued, your attorney will coordinate with the hospital where the surrogate plans to give birth. This step is crucial to ensure that hospital staff are familiar with the order and are prepared to recognize the intended parents as the legal parents of the baby.
At the hospital, it will depend on the particular hospital’s policies and the surrogate’s comfort if the intended parents may be present in the room during labor and birth. After the delivery, the baby is handed directly to the intended parents, who assume full responsibility and decision-making authority. Since the pre-birth order establishes the intended parents’ rights, they can make all medical decisions for the baby, including routine care and any necessary treatments.
Most hospitals in New York are familiar with surrogacy arrangements under the Child-Parent Security Act, but it’s always wise for your attorney to confirm that hospital staff understand and will follow the terms of the pre-birth order to avoid any miscommunication.
Issuance of the Birth Certificate
The pre-birth order directs the New York Department of Health to issue a birth certificate listing the intended parents’ names. This process is typically seamless, as the hospital forwards the birth information to the Department of Health, which then generates the birth certificate with the correct parental information. In most cases, the birth certificate is issued within a few weeks of the birth. However, processing times may vary depending on the hospital and local Department of Health procedures. Your attorney can follow up if there are any delays.
Having an accurate birth certificate from the start avoids potential legal complications and ensures that the intended parents can quickly obtain other important documents, such as a Social Security card and a passport for the baby.
Taking the Baby Home
Once the baby is discharged from the hospital, the intended parents can take the baby home – just like any other new parents. The pre-birth order ensures that there are no additional legal requirements or steps necessary before taking custody of the child. This is a particularly emotional and joyful moment for intended parents, as it marks the official beginning of their journey as a family. Knowing that the legalities are already in place provides reassurance and allows them to focus on bonding with their new baby.
Post-Birth Legal Support and Follow-Up (If Necessary)
In most cases, the pre-birth order is the final legal step in establishing parentage. However, there may be situations where additional legal steps or follow-up are required:
Correcting Minor Errors: Occasionally, there may be minor errors on the birth certificate (such as a misspelled name). Your attorney can assist in making corrections if needed.
International Travel: If the intended parents plan to travel internationally with their baby, they may need additional documentation, particularly if one or both parents are not U.S. citizens. Some countries may request certified copies of the pre-birth order or other legal documents.
Adoption for Additional Legal Security: While the pre-birth order is legally binding in New York, some intended parents, particularly same-sex couples, may choose to pursue a confirmatory adoption or second-parent adoption for added security when traveling or living with their child outside of New York.
Securing the Baby's Future
With the legalities of parentage secured, the next steps for intended parents may include:
- Adding the baby to their health insurance plan;
- Applying for a Social Security number and passport;
- Preparing or updating estate planning documents, such as wills and guardianship designations.
These practical steps will ensure that the baby’s legal, medical, and financial future is well-protected.
Common Challenges Encountered with Pre-Birth Orders
While New York’s Child-Parent Security Act provides a clear framework for pre-birth orders, challenges can still arise:
Jurisdictional issues: The petition must be filed in the correct county. An experienced surrogacy attorney will ensure that the filing is made in the appropriate jurisdiction.
Incomplete or Non-Compliant Agreements: Surrogacy agreements must meet specific requirements under the CPSA. Working with knowledgeable legal counsel ensures that your agreement is valid and enforceable.
Hospital Miscommunication: Occasionally, a hospital staff member may be unfamiliar with pre-birth orders. Your attorney can coordinate with the hospital ahead of time to prevent confusion during the birth.
Having an experienced fertility and surrogacy attorney can help ensure that these challenges do not come up for you and your child.
The Role of a Surrogacy Lawyer in New York
Given the complexity of surrogacy law in New York, working with an experienced surrogacy attorney is crucial. Your attorney will:
- Draft and review the surrogacy agreement to ensure compliance with the CPSA;
- Prepare and file the pre-birth order petition;
- Coordinate with the court and hospital;
- Advocate for your parental rights at every step of the process.
A knowledgeable attorney will guide you through the legal landscape, protecting your rights and ensuring a smooth and successful surrogacy journey.
A pre-birth order is an essential part of the surrogacy process in New York. Thanks to the Child-Parent Security Act, intended parents have a reliable and efficient way to establish their legal parentage before birth. By securing a pre-birth order, you can protect your parental rights, avoid legal complications, and focus on the joy of welcoming your new child into your family.
If you’re an intended parent or considering surrogacy in New York, consult an experienced surrogacy attorney, such as our office, to guide you through the process and ensure that your journey to parenthood is as seamless as possible. At Douglas Fertility and Surrogacy Law Group, we fight for what’s most important to YOU during fertility and surrogacy law matters.