In gestational surrogacy, a PBO (pre-birth order or post-birth order) refers to the legal order naming the Intended Parents as the legal parents of the baby born through gestational surrogacy. In many States in the U.S., the order is obtained before the birth of the baby (pre-birth order). In some States, the order is obtained shortly after the birth (post-birth order). In either case, the order is crucial in gestational surrogacy so that the Intended Parents are established as the legal parents of the baby, and to ensure that the names of the Intended Parents are placed on the baby’s birth certificate. The legal proceedings must be handled by an attorney licensed to practice law in the State of the birth, and who is experienced in the area of assisted reproduction technology law (ART law). There are at least a few attorneys in every U.S. State who can help with these important legal matters. You can check with the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) to locate competent legal counsel in the State where your baby will be born. The applicable law and legal procedures are the law and procedure if the State where the baby will be born. Most often, this is the State where the gestational surrogacy lives and gives birth. Another important result of obtaining a PBO is that the rights and obligations of the gestational surrogate will be terminated. In this sense, the process is different from an adoption process where birth mothers have rights after the birth in order to make sure they want to give their baby up for adoption. This issue is not present in the gestational surrogacy process. The order of legal parentage is obtained before the birth so that the moment the baby is born, the Intended Parents take legal custody and have the rights and obligations to make all decisions regarding care and treatment for their newborn baby. Even in the case of a post-birth order, the hospital and doctors will recognize the Intended Parents as the custodial parents because the lawyers will initiate the process before the birth and make sure the hospital and other key people know that the Intended Parents shall have the right to make decisions for the baby at the time of the birth. This is another important aspect of what the lawyers do to ensure the rights of the Intended Parents, i.e., they make sure that the hospital staff and administrators know who the Intended Parents are and that they are the legal parents. The lawyers also make sure that the governmental authorities responsible for issuing the birth certificate create and issue the correct birth certificate with the names of the Intended Parents, or with one Intended Parent if single. Of course, the most important aspect of a gestational surrogacy pregnancy is the health of the fetus and the gestational surrogate. The next most important issue is the legal process to obtain the PBO.
What does a PBO (pre-birth / post-birth order) ensure and why is it necessary?
A pre-birth or post-birth order is crucial in gestational surrogacy. It establishes the Intended Parents (IPs) as the legal parents of the baby, ensures that their names are on the baby’s birth certificate, and that the rights and obligations to the baby of the gestational surrogate are terminated. While the most important aspect of a surrogacy journey is the health of the fetus and the surrogate, the next most important issue is the legal process to obtain the PBO.
Victoria Ferrara, Esq.
As the Founder & Legal Director of Worldwide Surrogacy, Vicki leads the agency with a passion for law and the family formation process. She brings over 25 years of experience practicing assisted reproductive technology law and surrogacy law to help people make their dreams of family come true - just as hers have. She and her spouse, Michelle Loris, have two sons, Sal and Nick. Vicki has been practicing assisted reproductive technology, surrogacy, and family law for over 25 years, and serves as the Founder & Managing Partner of Ferrara Law Group, PC. One of Vicki’s greatest achievements is the landmark decision of Raftopol v. Ramey, a Supreme Court case that created a new way to establish legal parentage in Connecticut. The case determined that an Intended Parent was granted rights to a child via a valid gestational agreement regardless of genetic connection to the child to be born to the gestational surrogate.