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A Pre-birth Order, often called a "PBO," is a legal petition filed in court that requests the court rule that the intended parents are the legal parents of the baby carried by a pregnant gestational surrogate. This happens before the baby is born. On the other hand, a post-birth order is a similar court process, sometimes started before birth, but it is a process where the court grants the legal parentage judgment after the baby is born. When your lawyer or agency says, "We are preparing the PBO," they mean they are preparing the necessary legal parentage pleadings to file with the court. The term "pre-birth order" can refer to the actual court decision, but it often refers to the paperwork setitng that up. When a pre-birth order is signed by the court, it is sent to the hospital, accompanied by a letter from the attorney stating that the intended parents should be acknowledged as the legal parents in the surrogacy case. The judgment also states that  the gestational carrier and her spouse will not be listed on the birth certificate or have any legal rights over the child. With this order, the intended parents can complete the birth worksheet or birth certificate, officially listing them as the parents on the only birth certificate for the child. In contrast, post-birth orders are granted after the baby is born. In some states, this means the birth certificate might name the gestational carrier as the mother. The post-birth order will order the state’s department of health to seal the original birth certificate and issue a new one, officially recognizing the intended parents as the legal parents of the child. Whether a pre-birth or post-birth order will be requested depends on the laws and courts of the surrogate's state. In some states, like Washington, California, and Oklahoma, the courts issue pre-birth orders. In these states, the court declares the intended parents as legal parents before the baby is born. On the flip side, other states like Texas and Florida are post-birth order states, where the legal judgment does not issue until after the baby is born. It's crucial for your lawyer to know the parentage process in the state of the surrogate. Other states like New York and Illinois have administrative processes that allow issuance of birth certificates in surrogacy outside going through a court proceeding. However, if the intended parents need a court judgment affirming their parental status, they can pursue a post-birth judgment in Illinois or a pre-birth order in New York. Is there a disadvantage to using a pre-birth order or post-birth order? In most cases, there's no real downside to choosing a pre-birth order or post-birth order state. The result is the same: the birth certificate reflects the intended parents as the legal parents, not the surrogate. This is a consistent outcome in both types of states. For some international intended parents, there may be different requirements or needs for a pre-birth or post-birth order. For some intended parents, having a pre-birth order may be helpful for obtaining a visa; this was the case during COVID-19 times when certain travelers could not obtain visas to the US. In France, a post-birth order is required to recognize the parentage, so in pre-birth order states, a second order is requested. Tsong Law Group’s attorneys are well versed in preparing pre-birth and post-birth orders. Connect with the expertise of our experienced attorneys licensed in California, New York, Illinois, Washington, Arizona, and Oklahoma. Contact us now for your surrogacy legal needs.

The Digital Revolution in Surrogacy: The digital age has transformed how intended parents, gestational carriers, and surrogacy agencies connect. Social media platforms provide a space for open discussions, sharing experiences, and even matching intended parents with potential gestational carriers. However, with this convenience comes a range of legal considerations that should not be overlooked. Privacy and Confidentiality: Maintaining privacy and confidentiality is important in surrogacy arrangements. The open nature of social media can possibly expose sensitive information, jeopardizing the privacy of all parties involved. Parties should establish clear restrictions in their surrogacy agreement to protect the identities and personal details of both intended parents and gestational carriers. Prior to the agreement being established, the parties should be aware that such restrictions will be established in the future, and to keep things such as the identity and other characteristics of the other party they are matched with in confidence. Gestational carriers may have agreements with the agency that their images or names may be used for social media, but the parties should make their agency aware of any agreement to keep the other’s identity secret. The parties should monitor each other's social media feeds to ensure no violations of the confidentiality provision occur and inadvertent disclosures of information (such as a name on a wristband or ultrasound photo) are also removed. Social media groups are also places where many users air their grievances or seek confirmation that they are right in a disagreement. If the parties have a dispute, it’s strongly advisable not to put it on social media where anyone in a group may be able to see it or spread it. Once someone involved in the agreement finds out another party made a negative post about them, it will be hard for the parties to reconcile their differences. The parties should leave the dispute process to the agency, the attorneys, or what is provided in their surrogacy agreement. Social media groups are also places where surrogates can find out what other surrogates are making in compensation. We do not discourage the sharing of compensation information (if not prohibited by the contract), but suggest that surrogates be careful of what they post online and be mindful that compensation packages vary but once the match is agreed to, the changes to compensation are frowned upon by the agency and intended parents. Legal Implications of Online Matching: While social media groups can be useful in facilitating potential matches between intended parents and gestational carriers, the parties must protect themselves by not over-investing in matches that might not be feasible. The advantages and potential risks associated with using social media apply to potential recipients and donors for sperm, egg, and embryo donation matches. Some issues that make candidates not feasible for surrogacy include married surrogates who have spouses who do not consent, surrogates living in foreign countries or in states that are unfriendly to surrogacy, surrogates with no live-birth experience, and ones relying on public benefits. Consulting with an experienced assisted reproductive technology (ART) attorney at the early stages of an independent match is essential to ensure that all legal requirements for the surrogate’s state are met and that the rights of all parties are protected. Scams and Impersonation Risks: The internet and social media are home to many scams, and the surrogacy world is no exception. As scammers have realized intended parents are desperately seeking surrogates and that money can be made, they may impersonate surrogate candidates with the desire to scam money or emotionally manipulate another party. It is crucial for intended parents to exercise caution, which include background checks (which attorneys can perform) to verify the identity and any criminal history of potential gestational carriers or their partners. Even then, medical records and psychological screenings are needed. Intended parents who are not experienced may benefit from working with a surrogacy consultant or agency to assist them in getting a surrogate medically cleared, while also working with an attorney for legal drafting. Independent journeys are not for everyone, those who opt for this route should be aware that the legal filing process with the court requires meticulous attention. We discuss some of the advantages and disadvantages here. Conclusion: As surrogacy continues to adapt to the digital age, staying informed about the legal concerns surrounding online interactions is vital. Both the advantages and potential risks associated with using social media will apply to the potential matches for recipients and donors in sperm, egg, and embryo donation. If you need drafting or review of your surrogacy or gamete donation agreement, Tsong Law Group is ready to assist you. We have experience in complex negotiations and resolving difficult contract issues. Contact us today.

When embarking on the journey of surrogacy, the drafting of the contract between surrogate and intended parents is crucial. In our experience, there are three contract sections we more commonly see disagreement between intended parents and surrogates. In this blog, we will explore these three terms and recommend how the parties deal with different opinions. COVID Vaccination Status While the most dangerous days of COVID-19 have hopefully passed us, COVID may be fresh on some parties’ minds and intended parents and the surrogate may have strongly differing viewpoints on the need for vaccination or boosters. Ideally, the parties discuss and already have an agreement on the surrogate’s decision to vaccinate or not vaccinate prior to the legal stage. If the parties reach legal and find their viewpoints differ, it is best to keep in mind that the parties are unlikely to change their viewpoint at the contract stage. Open communication is key. Intended parents and surrogates can start by sharing reasons for individual positions on the COVID vaccine. If the intended parents strongly request vaccination or booster, while the surrogate opposes it altogether, this section becomes a sensitive negotiation point that could result in an impasse. A compromise may be possible through alternative measures for preventing COVID. If a surrogate has received a vaccination in the past but opposes a booster shot, the intended parents may wish to contact their physician to see if a booster shot would be recommended or not. Travel Restrictions Travel restrictions are typically part of a surrogacy contract to make the surrogate aware that travel during different stages of pregnancy may have be unsafe, and travel in later stages of pregnancy seems to keep the surrogate close to the delivery hospital, prevent premature birth, and reduce the risk of an out-of-state birth where the surrogate's parentage judgment may not be recognized by that state. Intended parents may react strongly when these provisions are revised by the surrogate. However, surrogates may have valid reasons for travel that should be considered. To resolve disputes about travel restrictions, intended parents should ask why the surrogate would like out-of-state travel or different dates for travel limitations. These reasons could be work or family-related which may allay the intended parents’ fears, and allow for more specific carve-outs. Both parties can build a cooperative and empathetic relationship with communication. Some travel restrictions, such as those to foreign countries during the pregnancy should not be modified as having a parentage judgment recognized in a foreign country will be much more complicated and healthcare access may be much more expensive. Abortion/Termination of Pregnancy Discussions on abortion, fetal reduction, or termination of pregnancy are a very sensitive topic. The parties’ views on the subject need to be discussed beforehand and the intended parents' attorney should be informed ahead of the drafting what the parties have agreed to. While these events are rare in most surrogacy journeys, having a mutual agreement ahead of time is vital. Intended parents and surrogates should approach the topic with empathy and recognize the other parties’ viewpoints are unlikely going to change at contract stage. If the attorney is not informed of the parties’ agreement and the wrong terms are sent to surrogate’s attorney, the parties may find themselves in a much more contentious position. Now, after the U.S. Supreme Court has allowed states to restrict abortion access, the parties need to be mindful of what the legal consequences are if this provision is inconsistent with state law. Even if the parties agree on termination provisions, the contract has to be drafted consistent with the laws of the surrogate’s state. If the surrogate is a “no term” surrogate, the parties should discuss what the termination provision says when the health of the surrogate or the developing child is at risk. A comprehensive approach not only acknowledges the the parties’ views on abortion but also acknowledges potential legal consequences. The parties should approach this section by acknowledging and respecting the other parties’ viewpoints ahead of time. Conclusion: Surrogacy contracts serve as the foundation for a successful and harmonious journey. Every surrogacy contract must be reviewed with the attorneys who should point out potential areas of disagreement, such as COVID vaccination status, travel restrictions, and abortion/termination of pregnancy. Your surrogacy attorney should promote the contract negotiation with an emphasis towards empathy and understanding. This paves the way for possible compromise smoothing over differences in key points. If you need drafting or review of your surrogacy agreement, Tsong Law Group is ready to assist you. We have experience in complex negotiations and resolving difficult contract issues. Contact us today.