Birth Orders: An Overview

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What?

A birth order is essentially a judgment on the legal parentage of a child. If the apparent parents of a child are not the same as the intended parents, which is almost always the case when a child is born via a surrogacy arrangement, the parties involved can ask a judge to rule on who a child’s parents are and issue a “birth order” establishing the child’s legal parentage. It is not available in every jurisdiction.

When?

Some states will allow judges to issue pre-birth orders, and in some states the order is only available post-birth.

  • A pre-birth order will be filed with the county and the hospital, and the hospital will be required to immediately enter the legal parents on the birth certificate, rather than the apparent parents.
    • If a pre-birth order is possible, it is generally advised to begin the process for obtaining one as early in the pregnancy as the viability of the fetus is considered more likely than not – ie, end of the first trimester.
  • A post-birth order can be sent to the relevant authorities in order to obtain a new birth certificate that names the legal parents.
    • Even though the application for a post birth order can likely not be transmitted to the court before the birth of the child, the background work is extensive enough that is advisable to begin the legal paperwork well in advance of the birth.

Why?

Protection/peace of mind for intended and birth parents

  • If issued before birth, it may reassure everyone involved about the future parentage of the child.

Legal enforceability across multiple jurisdictions

  • Court orders carry greater weight than state statute, in terms of being enforced out of state, by virtue of the full faith and credit clause.

Simpler Alternative/supplement to Adoption or Second Parent Adoption

  • A birth order that names both intended parents ought to obviate the need for a second-parent adoption, since as a court declaration of parentage it should be entitled to full faith and credit everywhere.
  • In many jurisdictions, the process for getting a birth order is easier and cheaper than an adoption.

Single Parents

  • Ensure that only one legal parent is recognized regardless of the genetic/birth parents.

Who?

  • Some states require that, in order to issue a birth order rather than go through an adoption process, at least one of the intended parents be genetically related to the child.
  • Some states allow a birth order even without any genetic relationship.
  • Some states regulate surrogacy and only permit a birth order under certain, permitted surrogacy arrangements, which may require that the intended parents be a heterosexual married couple and that they obtain court pre-approval of the surrogacy agreement.
  • Some states do not permit anyone to seek a birth order.

How?

Although the process for obtaining a birth order, when it is possible to do so, is often less costly and less complicated than seeking an adoption or second parent adoption, it is still extremely important to seek legal counsel well in advance of the birth. Some states have strict time limits for the submission of applications and documents, and the processes vary dramatically from one state to another. In some states, the process is so burdensome or exclusionary that it does not make sense to seek a birth order even where it is legally/statutorily possible to do so.

Generally, all the parties involved – intended parents, genetic parents, gestational mother, and if applicable, her spouse, must submit collaborate and participate in the process. Some states require an appearance before the judge while some can be done entirely by correspondence.

(Related: Birth orders in New York State)