What is a pre-birth parentage order?
A pre-birth parentage order is a court order, issued before delivery, that names the intended parents as the legal parents of the child the surrogate is carrying. For two dads, it names both fathers. The hospital submits the order with the birth record, so the birth certificate lists both fathers from day one and the surrogate's name does not appear.
The order is possible because the surrogacy agreement was signed, with independent counsel on both sides, before any medication or embryo transfer. Your attorney files during the pregnancy so the order is in place before the due date, including if the baby arrives early.
This page is written by Nancy Block, RN, founder of Private Label Surrogacy. It is not legal advice. Your own attorney advises you on which documents your family needs, and the surrogate's own attorney advises her. Reviewed by [attorney name], [firm], on [date]. Statute details on this page are pending review by counsel.
| Pre-birth parentage order | Post-birth parentage order | Second-parent (confirmatory) adoption | |
|---|---|---|---|
| Timing | During the pregnancy, before delivery | After delivery | After delivery, often weeks or months later |
| Who is named | Both intended fathers | Both intended fathers | The adopting father is added as a legal parent by judgment |
| Birth certificate | Lists both fathers from the start | Issued or amended after the order | Usually already lists both fathers when done as a confirmatory step |
| Cost | Part of the $15,300 to $29,000 third-party cost range on a PLS journey | Part of the same range | A separate attorney fee, not included in the third-party range; confirm with Nancy and counsel |
| Portability across states | A court order, honored by other states | A court order, honored by other states | An adoption judgment is entitled to full faith and credit in every state |
| Portability abroad | Varies by country | Varies by country | The document most foreign governments recognize |
What is a second-parent (confirmatory) adoption?
A second-parent adoption is a post-birth court process in which a parent adopts the child without the other parent giving up any rights. For two dads, the non-genetic father adopts, and the genetic father remains a parent.
When it is done after a pre-birth order already names both fathers, it is often called a confirmatory adoption. It does not change who the parents are. It adds a second, independent court judgment that says the same thing, in the form that travels best.
The process usually involves a petition, background paperwork and a short court hearing, and timing and steps vary by county and state; confirm with counsel. Your attorney tells you what your county requires and how long it takes.
What does Illinois law say for same-sex couples?
The Illinois Gestational Surrogacy Act (2005) makes compensated gestational surrogacy agreements enforceable and provides pre-birth parentage for intended parents when the Act's requirements are met.
The Equality for Every Family Act, signed in December 2025, removed the earlier requirement that at least one intended parent contribute an egg or sperm. It also requires independent counsel for both the surrogate and the intended parents.
Statute details are reviewed by counsel before publishing; no section numbers are cited until counsel confirms.
What that means in practice for two dads:
- Both fathers are intended parents under the Act. Being married, unmarried or the non-genetic father does not change that.
- The genetic link does not decide parentage. Before December 2025, at least one father had to be genetically related, which mattered most for couples using donor embryos.
- Independent counsel is required for both sides. PLS already required separate attorneys, so for PLS families this changed paperwork, not practice.
Illinois does not restrict surrogacy by sexual orientation. You do not have to live in Illinois to match with an Illinois surrogate. See Illinois surrogacy law for the full requirements.
Why do attorneys recommend both for gay dads?
Because a pre-birth order and a birth certificate protect you at home, and a court judgment protects you everywhere else.
Many attorneys still recommend a confirmatory adoption or judgment for gay couples. Every US state and every foreign country must honor a court order, while not all honor a birth certificate alone. An adoption judgment is entitled to full faith and credit in every state, and it is the document most foreign governments recognize.
The risk is concentrated on the non-genetic father. If the family moves to another state, travels abroad, or one father dies or the couple separates, a judgment in his name removes any question about his parentage. Two fathers on a birth certificate is usually enough day to day. The adoption judgment covers the days that are not usual.
Is it always needed? No. Some families, especially those who expect to stay in one state, decide with their attorney that the pre-birth order is enough. If you are an international couple, or likely to move, the case for a confirmatory adoption is stronger. Your attorney, and your counsel at home if you live abroad, make the recommendation. See citizenship and passports for what international parents also need.
What happens if the surrogate delivers in another state?
The law of the state where the birth happens generally governs the birth certificate and parentage. So the state that matters most is not where you live and not where your clinic is. It is where your surrogate delivers.
That creates two planning questions:
- Which state is she likely to deliver in? An Illinois surrogate living near a state line might deliver in Wisconsin or Indiana. Her attorney and yours plan for that in the agreement and file where the order will be needed.
- Does that state offer the same route? Some states issue pre-birth orders to two fathers; some issue only post-birth orders; a few restrict compensated surrogacy or limit who can obtain an order. That is another reason a confirmatory adoption is often recommended.
PLS places surrogates only in surrogacy-friendly US states, and counsel reviews the surrogate's state before you match. See LGBTQ-friendly clinics and states.
What do the parents, the surrogate and PLS each do?
You, the intended parents:
- Retain your own reproductive-law attorney. PLS refers you to independent attorneys; you may choose your own.
- Pay for both attorneys, through escrow.
- Sign the gestational carrier agreement before any medication starts.
- Decide with your attorney whether to add a confirmatory adoption or judgment after the birth.
The surrogate:
- Has her own independent attorney, who answers only to her.
- Signs the agreement, and cooperates with the parentage filing.
- Has no parental rights or obligations once the order is in place. The surrogate's name does not appear on the birth certificate when a pre-birth order is in place before delivery.
PLS:
- Does not employ attorneys, on purpose. Independent counsel on both sides avoids conflicts of interest, and Illinois law now requires it.
- Holds the clinic start until the agreement is signed and escrow is funded. Escrow is $10,000 at match and the balance before medications start, held by an independent licensed escrow agent.
- Coordinates timing between both attorneys and the delivering hospital.
- Writes a birth plan with the hospital so staff know who the parents are before labor begins, and gives the hospital the order.
For the rest of the two-dad journey, from egg donor to birth, see gay surrogacy and LGBTQ+ family building.
Sources
- Illinois Gestational Surrogacy Act (2005), Illinois General Assembly. Pending review by counsel.
- Equality for Every Family Act, signed December 2025, Illinois General Assembly. Pending review by counsel.