Pre-Birth Orders Explained: Legal Parenthood and Surrogacy

By Dr. Kulsoom Baloch

Learn more about Dr. Baloch

Introduction

One of the most critical parts of the surrogacy process is ensuring that intended parents are recognized as the legal parents of the baby. This is where **pre-birth orders** come in. This blog explains what pre-birth orders are, how they work, and why they’re essential for every surrogacy journey.

What Is a Pre-Birth Order?

A pre-birth order is a court order issued during the surrogate’s pregnancy that legally names the intended parents as the child’s legal parents. It allows them to be listed on the birth certificate from day one and ensures they have full rights and responsibilities immediately after birth.

When Is a Pre-Birth Order Filed?

Typically, the order is filed during the second trimester—often around 20 to 28 weeks of pregnancy. The legal team representing the intended parents files it with the court in the surrogate’s home state.

What Does It Cover?

• Legal recognition of the intended parents
• The right to make medical decisions at birth
• Hospital release of the child to the intended parents
• Issuance of a birth certificate in the names of the intended parents

Do All States Allow Pre-Birth Orders?

No. While many states allow pre-birth orders (especially surrogacy-friendly ones like: California, Illinois, and New Jersey), some states:

• Allow only post-birth orders
• Require a hearing
• Restrict pre-birth orders to married heterosexual couples

What Happens in States Without Pre-Birth Orders?

If a state does not permit pre-birth orders, a **post-birth order** or **adoption process** may be required to legally assign parenthood. This can delay hospital discharge and legal rights, which is why choosing a surrogate in a surrogacy-friendly state is important.

Why Pre-Birth Orders Are Important

• Ensure intended parents’ names go directly on the birth certificate
• Avoid unnecessary court or custody issues after delivery
• Simplify hospital discharge and travel after birth
• Establish clear legal rights from the moment the child is born

States That Commonly Allow Pre-Birth Orders

These states are considered surrogacy-friendly and generally allow intended parents to be declared legal parents before birth:

• California
• Connecticut
• Delaware
• District of Columbia (D.C.)
• Nevada
• New Hampshire
• New Jersey
• New York
• Vermont
• Rhode Island
• Washington State
• Colorado
• Illinois
• Oregon
• Maryland
• Maine
• Massachusetts (depends on court and legal team)

States That Typically Require Post-Birth Orders or Special Legal Handling

These states may allow surrogacy, but pre-birth orders are not guaranteed, and the court may require post-birth parentage or adoption:

• Texas (pre-birth orders allowed only for married heterosexual couples)
• Florida (post-birth order within 3 days of birth; intended parents have no rights until then)
• Georgia (legal support varies by judge and county)
• Hawaii
• North Carolina
• South Carolina
• Indiana (surrogacy contracts are not enforceable, but post-birth orders may be possible)
• Arizona (contracts are unenforceable, but intent-based orders sometimes issued)
• Alaska
• Idaho
• New Mexico
• Pennsylvania
• Wisconsin

States With Significant Legal Restrictions or Prohibitions

These states make compensated surrogacy illegal or legally risky:

• Michigan – Paid surrogacy is a felony
• Nebraska – Surrogacy contracts are unenforceable
• Louisiana – Surrogacy is only allowed for married heterosexual couples using their own gametes

How Surrogacy4All Assists

Our legal partners:

• Coordinate with state courts to file timely pre-birth orders
• Ensure all parties are represented and protected
• Guide intended parents through any hearings or document requirements

Conclusion

Pre-birth orders provide peace of mind and legal protection for everyone involved in a surrogacy journey. At Surrogacy4All, we ensure every family begins with clarity and confidence by handling legal steps from start to finish.