What is parenting order application? Which US states permit surrogacy?

What is parenting order application?

In the Uniform Parentage Act, the woman who gives birth to the child i.e surrogate mother is assumed to be the child’s legal and biological mother. And, if the surrogate mother is married then her spouse is presumed to be the child’s legal father. In gestational surrogacy, this isn’t true as a surrogate mother does not have parental rights over the infant, to change the parent’s name on the child’s birth certificate intended parents need to undergo a legal process named a parenting order application.

As per the Parentage Act, intended parents need to have the acknowledgment of the parentage rights by the courts to obtain their legal rights as parents.

To begin with, intended parents can obtain legal parental rights only when the surrogate and her husband (if any) give consent by signing documents that state the surrogate and her husband are not the legal parents of the child and they are renouncing the rights they may have over the newborn child. Furthermore, the documents are passed to the intended parent’s attorney who submits them ahead to the court with a few more paperwork to prove the parentage of the intended parents.

In traditional surrogacy, the legal aspects of surrogacy get even more complicated as a surrogate mother has a biological link with the child. Intended parents must ensure that the surrogate’s rights are terminated and the surrogate and her spouse (if any) sign the document with their consent stating that they renounce all the parental rights over the child. Though, in some cases the surrogate mother may end up getting attached to the baby which affects the legal process hence traditional surrogacy isn’t advised to consider, also most countries do not permit any individual to undergo a traditional surrogacy process.

Apart from the parenting order application, the intended parent who doesn’t share the biological link with the child will have to complete the proceedings of step-parent or second-parent adoption. Sounds confusing? Don’t worry, we will discuss this later in the blog.

Filing pre-birth order application

Depending on the legal aspects of surrogacy in different states or countries, intended parents can prepare for the parenting order application before the birth of their child by working with their attorney and preparing all the paperwork beforehand. This process is termed a pre-birth order application.

In states or countries where pre-birth order is legally permitted and recognized, intended parents can benefit from this process in many ways:

• This process declares that the intended parents are the legal parents of the child by the time child is born.
• Hospitals will directly mention the names of the intended parents on the child’s birth certificate as the legal and biological parents.
• It also allows the intended parents to take medical decisions for their infant.
• It gives peace of mind to the intended parents
• With pre-birth order intended parents can directly discharge their baby from the hospital.

Depending on the surrogacy laws in united states, the process of pre-birth order differs. In general, the requirements of pre-birth order are similar in the states that allow pre-birth orders including, the intended parent’s attorney needs to submit a physician’s affidavit that confirms the details of embryo transfer, and any other social documents or other evaluations prepared for the surrogate mother and intended parents in the duration of the surrogacy process.

The pre-birth order application occurs usually amid the process of surrogate pregnancy, the attorney will file the documents in the court around the 7th month of the surrogate’s pregnancy. Once the pre-birth order is in lieu the next step is the surrogate mother’s acknowledgment on the document stating that she isn’t the legal or biological mother of the child with her sign. Also, this process is conducted only after the birth of the baby.

Though remember not every state would legally recognize pre-birth order, and the legal aspects of surrogacy and rules of pre-birth order may vary from state to state. Hence, it is extremely important to have an experienced attorney by your side who can guide you throughout the process. In other states, all the legal aspects of surrogacy are conducted after the birth of the child and in a few states, a court hearing may be mandatory.

Post-birth order application

A post-birth order or parenting order application is similar to pre-birth order except this process is conducted after the birth of the infant. The post-birth parentage order aids intended parents to recognize themselves as legal parents of the child and the court grants the permission to place the names of the intended parents as official parents of the child on the birth certificate.

In some cases, to obtain post-birth order genetic testing might be required. If intended parents are not connected biologically with their children then they may have to apply for a step or second-parent adoption to obtain a parentage order.

Though, there may be a gap between the birth of a child and the process for obtaining a post-birth order yet intended parents can take the child’s custody right after the birth and they have complete responsibility for their child. Additionally, a surrogate mother can take the assistance of a healthcare power of attorney or similar document to ensure that the intended parents can take the medical decision for the baby effectively.

Administrative process

Few states in the United States have established administrative process that permits intended parents to obtain parentage order and put their names on the birth certificate of their infant. And for the surrogate mother, this process ensures that she is relieved from parental rights and responsibilities after the birth of the child.

With the advanced administrative process, the forms and or affidavits involved in the process of parenting order application are auto-filled with the state’s office records, hence state knows directly whom to list on the child’s birth certificate.

With the administrative process, intended parents do not need to go to the courts for parentage acknowledgment. Though, same-sex intended parents must seek the advice of their experienced attorney and shouldn’t completely rely on parenting order application through the administrative process. Because to ensure the security of their parental rights, gay intended parents must obtain parentage orders via courts alone.

International intended parents

Just as the process of surrogate pregnancy varies in different programs and countries, the legal aspects of surrogacy differ significantly. Intended parents who aren’t citizens of the United States must seek the guidance of an attorney in the USA and one in their home country to understand the legal implications of surrogacy in both countries. International intended parents must know the difference between the process of surrogate pregnancy in the destination country and the process of welcoming their baby back to the home country including all the documents required before time or before committing to the procedure.

Additionally, it is advised that international intended parents must consult an attorney who specialized in immigration so that they don’t face any hurdles with obtaining citizenship or permanent lawful residence of their baby in their home country. Also, consulting an immigration expert in the USA or your destination country is a must as you need to make sure that you have the right USA visa for yourself and your newborn infant to visit the USA throughout the process and to travel back home.

Complications with no genetic relationship with the baby

In many states of the USA, when intended parents do not share a genetic relationship with the child in the process of surrogate pregnancy either using donated embryos, sperm, or egg donor, then adoption may require. Whereas in other states, a pre or post-birth parentage order can be obtained easily based on the intent of intended parents and not through genetic testing.

Process for step-parent, second parent or embryo adoption

When the intended parents aren’t genetically connected with their children then they may have to complete a process of adoption to obtain legal custody of their children. And, in the case where neither of the intended parents has a biological link with the child then they have to undertake full adoption or embryo adoption.

In other cases, where one partner is biologically linked to the baby and they have chosen to use an egg or sperm donor then the partner who is genetically not connected will have to undergo a step-parent or second-parent adoption process. Though the procedure of adoption is quite lengthy and complicated, the step-parent adoption process is simplified, and the state would relinquish a few adoption requirements like home study and post-child placement supervision.

Can a surrogate mother keep the baby with her?

This is a common concern, every intended parent has before committing to the process of surrogacy. No, a surrogate mother does not have any legal rights over your child, hence she cannot keep the baby with her or claim that she will raise your infant.

When a surrogacy process begins, the surrogate and intended parents enter into this arrangement by agreeing to one common goal i.e. assisting the intended parents to complete their family. Additionally, from the day 1 surrogate is aware that she is only carrying a child for another family, and post-delivery she needs to hand over the newborn baby to the intended parents and this fact is always mentioned in a surrogacy contract without the sign of two parties in this contract further process cannot be carried out.

As per the surrogate mother, the prenatal bond with a surrogate baby isn’t the same as the maternal bond that they have when they carry their child. Although, if in case a prospective surrogate mother is struggling with the feeling of grief, loss or doubt, or sadness then it is advised to make her undergo counseling to assist her in emotionally transferring the baby to the intended parents.