Birth Certificates and Parentage Orders in Surrogacy

As surrogacy attorneys, we hear a lot of questions from parents about surrogacy and birth certificates: “In surrogacy, who goes on the birth certificate as parents?” “If I am not a biological parent, how do I get on the birth certificate for my child born through surrogacy?” “What is the process for intended parents to become the legal parents of a child born through surrogacy?”

In this blog post, we will attempt to address some of the most common questions we hear about gestational surrogacy, parentage orders, and birth certificates.

Do I have to wait until my surrogate gives birth before I have a legal document giving me rights to my child?

No. In South Carolina, courts may enter a pre-birth parentage order. A pre-birth order grants the intended parent or parents custody of their child upon birth and allows them to make medical decisions for the child. Having a pre-birth order gives intended parents peace of mind, so that they can enjoy the excitement of their child’s impending birth and look forward to taking their child home with them after the child is born.

Are pre-birth parentage orders available in all states?

No. While pre-birth orders are available in South Carolina and in several other states, not all states recognize these orders and some require post-birth orders. Additionally, the process and requirements for obtaining a pre-birth order vary from state to state, and sometimes between venues in the same state.

Is a hearing necessary to obtain a pre-birth parentage order in South Carolina?

Yes, in some cases. It depends on the circumstances of the case and the particular judge and court. Often, however, a pre-birth order can be obtained by consent when the intended parents and surrogate sign a document stating that they agree that the intended parents will be the child’s legal parents.

Is anything else required to get a pre-birth parentage order in South Carolina?

Yes. The intended parents, the surrogate, and possibly the doctor who performed the embryo transfer, will need to affirm that the gestational surrogate is not genetically related to the child she is carrying.

If we have a pre-birth order from another state, will it be recognized by South Carolina Vital Records offices?

It is unlikely, based on past history. If you have concerns regarding an out-of-state pre-birth order, contact a South Carolina surrogacy attorney to discuss next steps.

Can both intended parents be declared legal parents in a pre-birth order if only one of them has a genetic relationship to the baby?

In most cases, yes, but it depends upon the marital status and sexual orientation of the parties. The issue of a direct genetic link is key.

If the parties are unmarried and used donor material, the non-genetic parent will be required to obtain a second parent adoption to secure equal legal parental rights. This is true whether they are heterosexual or a same sex couple.

If they are heterosexual, unmarried, but used their own genetic material, an adoption is not required to obtain legal parental rights to the child.

Consequently, while married same-sex couples can both be named parents in the pre-birth order and be listed on the birth certificate; the parent with a genetic relationship has the legal parental rights and the non-genetic parent must establish their legal relationship to the child through a second-parent adoption. After that takes place, the birth certificate can be amended to name the adoptive parent as the child’s legal parent. Like all other adoptions in South Carolina, this action is filed under seal and not available to the public.

Neither my partner nor I are genetically related to our child to be born by surrogate. Can we still get a pre-birth parentage order in South Carolina?

Yes, but there may be procedural differences. Whether you are married or unmarried, an opposite-sex or same-sex couple, or a single parent. Speak to a South Carolina surrogacy attorney about the process of establishing legal parentage.

What is the difference between a pre-birth and post-birth parentage order?

The process for obtaining a post-birth order is largely the same as that for getting a pre-birth parentage order, except obviously that a post-birth order is granted after the baby has been born.

Do sperm, egg, or embryo donors have any parental rights in a South Carolina surrogacy?

Maybe. South Carolina has no donor statute to effectively terminate the rights of a donor upon donation. This means their rights can only be permanently removed by a court order. For this reason, sperm, egg, and embryo donation agreements should clearly and specifically express intent to extinguish the parental rights of donors of genetic materials in the event that their genetic contribution results in the birth of a child. (The exception is if an egg donor is also an intended parent, as in reciprocal IVF between same sex female couples.) Clear and careful drafting is essential; this is an emerging area of the law and, as often happens, legal developments lag behind technological ones. This is one of many reasons it is important to work with an attorney who is experienced in legal issues of assisted reproductive technology (ART).

How long after a child is born through surrogacy does it take the parents to get a birth certificate?

In most cases, South Carolina will issue parents who obtained a post-birth order for a birth certificate that identifies them as parents the same day a certified copy fo the post-birth order is presented to Vital Records at the Columbia, South Carolina, office. If submitting the order and application by mail, the process can take 4-6 weeks. Your surrogacy attorney can assist you if there is a delay in obtaining a birth certificate.

To learn more about surrogacy and birth certificates, or to get answers to other frequently asked questions about surrogacy, contact Brinkley Law Firm, LLC to schedule a consultation.