Your Gestational Carrier is pregnant, YAY! Now how do you make sure you, the Intended Parents, are legally declared the parents of the baby and have your names on the birth certificate? The short answer is: it depends. Each state has its own system and you should always consult an attorney knowledgeable in assisted reproductive technology law in the state where the birth will take place (that’s where your parental rights will be determined).
Surrogacy Law in Colorado
Gestational surrogacy is permitted in Colorado because no statute or published case law prohibits it. Courts typically grant pre-birth parentage orders (PBOs) (a court order issued during the pregnancy confirming the intended parents as the legal parents of the child) without complication.
To learn about other states, Creative Family Connections has a helpful map that outlines the legal status of surrogacy in all 50 states.
Non-Friendly States or States Where Surrogacy is Illegal
In some states surrogacy, or certain forms of surrogacy (such as compensated surrogacy), is illegal: LA, MI, NJ, NY, and WA. If the state is non-friendly to surrogacy, there are potential legal snags and inconsistencies (such as only granting PBOs for heterosexual married couples, or if both intended parents are genetically related to the child). Depending on the state, the surrogacy process may prove very difficult. States in this category include: AK, AZ, IA, ID, IN, MS, MT, NE, TN, VA, and WY.
In a state where a PBO is not accepted or allowed, IPs may have to go through a post-birth adoption procedure, or petition for a post-birth parentage order. Each state is different; researching and consulting with an attorney is very important when surrogacy is being considered.
What Does a Pre-Birth Order Do?
This document – a court order – gives all parental rights to the IPs, including ordering that the IPs’ names should go on the child’s birth certificate and the IPs have the right to name their child. This document also removes the gestational carrier from having any parental rights or obligations for the child once it is born.
Cost of the Pre-Birth Order
The cost of a PBO in Colorado is typically $1,500 to $2,500 for an attorney to represent you and prepare the documents, another $500 to $1000 for an independent attorney to represent your gestational carrier in the petition, and approximately $300 for court filing fees and certified copies of the order. The cost for court filing fees and attorney fees varies in other states.
When to File the Pre-Birth Order
Many intended parents wait until after the first trimester (when the risk of miscarriage goes down) to start to the PBO petition, but they also aim to have it done by the time a fetus is generally considered viable (24 – 26 weeks of gestation). In Colorado, once the petition is filed, the court usually returns the order within two or three weeks, according to Ellen Trachman, Esq. of Trachman Law Center.
Soon that baby you have been longing for will be born and you will be legally named the parents – thanks to your PBO!