A Pre-birth Order is a legal court order establishing the Intended Parents’ parental rights over the child(ren) to be born through a surrogacy arrangement. This is essentially the second part of the two-part process. Without a Pre-birth Order, in California, the Surrogate and her spouse, if any, may be presumed parents under the law even with a valid Surrogacy Contract. California law permits the filing of a Pre-birth Order in the form of uncontested or default judgment without the need to attend a court hearing. Should a hearing be required in some rare occasions, our office is ready to advocate on your behalf.
Documents for obtaining a Pre-birth Order are typically prepared starting at approximately 11th week of the Surrogate’s gestational pregnancy. Unlike a Surrogacy Contract, Pre-birth Order documents are reviewed for accuracy as to the facts rather than for preferences.
If our office represents the Intended Parents, the followings will happen:
1. You will receive a retainer agreement for review with explanations of our office’s services and fees. If you approve, please sign and send it back to our office along with payment of fees through a selected method of payment. This is considered the second part of the two-part legal process and a separate retainer agreement will need to be executed.
2. We will then reach out to you and the Surrogate’s attorney for information that we will need to prepare the necessary court documents.
3. Once the court documents are reviewed and approved, we will circulate them for signatures and file with the appropriate court.
If our office represents the Surrogate, the followings will happen:
1. When the time is ready, we usually expect a questionnaire from the Intended Parents’ attorney that you will need to fill out. The questionnaire includes questions about (1) Expected Due Date, (2) Pregnancy Confirmation Date, (3) Place of Delivery, etc.
2. We will then wait for the Intended Parents’ attorney to complete his/her preparation of the court documents. Once we have received them, we will reach out to you to schedule a consult to go over the documents.
3. The approved documents are then circulated for signatures to be filed with the appropriate court.
Generally, the Surrogate must deliver the child(ren) in the state where the parental judgment is obtained as each state has its own reproductive laws. For example, for some states that only recognize a Post-birth Order, a Pre-birth Order issued by a California Court will not be legally effective in those states.
More commonly, even with states that utilize Pre-birth Orders, they do not recognize orders issued by another state. However, there are some exceptions as some states either acknowledge a Pre-birth Order or recognize them through its own domestication (certification) process. Our office has worked with experienced reproductive law attorneys through the United States, please contact us to discuss your situation.
We charge a flat fee for preparing and obtaining a Pre-birth Order. Please contact our office for our standard fee schedules.
Note: The Intended Parents are responsible for paying the Surrogate’s legal fees.
The typical time for a court to process a Pre-birth Order is about 4 to 6 weeks. This is in addition to the time spent on preparation and review which typically takes about 2 to 3 weeks. Our office constantly monitors the status of your arrangement to ensure we are able to begin the process as early as possible.