Reviewed by [attorney name], [firm], on [date]. Every statement on this page about a state's law is pending review by counsel. Status as of [date].
This page explains the two main ways intended parents become the legal parents of a child born through gestational surrogacy, and what each means in practice. It is written by Jan Telman Berman, Global Surrogacy Coordinator at Private Label Surrogacy. It is not legal advice; your attorney will tell you which route applies to your journey.
What is a pre-birth parentage order?
A pre-birth parentage order is a court order, obtained during the pregnancy, that names the intended parents as the legal parents from the moment of birth. In Illinois, the same result comes from an administrative certification filed by the attorneys rather than a court order.
Because parentage is settled before delivery:
- The hospital issues the original birth certificate in the intended parents' names.
- The surrogate is never listed as a parent.
- The intended parents make medical decisions for the baby from birth.
- No adoption follows.
In practice, the attorneys usually file during the second trimester, after the pregnancy is confirmed, so the paperwork is ready if the baby arrives early. For the Illinois process step by step, see how an Illinois pre-birth order works.
What is a post-birth parentage order?
A post-birth parentage order does the same thing after delivery. The intended parents, through their attorney, ask a court to declare them the legal parents once the baby is born. The order typically follows within days to weeks of birth.
The birth certificate is then issued or amended to name the intended parents. Until the order is entered, there is a gap in which the intended parents' legal status is not yet settled.
The end result is the same as a pre-birth order. The difference is timing, and what happens during the gap.
Which states use which?
The route depends on the law of the state where the surrogate delivers, not where the intended parents live. That has a practical consequence: a surrogate who lives near a state line may deliver at a hospital across it. If the two states use different routes, the attorneys plan for both in the gestational carrier agreement and in the timing of the filing. When PLS writes the birth plan, the delivery hospital, and so the state, is one of the first things settled.
States fall into a few patterns.
| Parentage route | What it means | State examples |
|---|---|---|
| Pre-birth by statute | A statute provides for parentage before birth | Illinois, California, Colorado, New Jersey, New York, Washington |
| Pre-birth by practice | No statute, but courts routinely grant pre-birth orders | Many no-statute states; examples to be confirmed by counsel |
| Post-birth by statute | A statute provides for an order after birth | Florida |
| Varies by county | Practice depends on the court where the case is filed | Some no-statute states; examples to be confirmed by counsel |
| Adoption needed for non-genetic parent | A non-genetic parent completes parentage by step-parent or second-parent adoption | Where neither order is available to a non-genetic parent; examples to be confirmed by counsel |
Since December 2025, Illinois law no longer requires that an intended parent be genetically related to the child to receive pre-birth parentage. See Illinois surrogacy law. For Florida, see surrogacy in Florida. For every state, see surrogacy laws by state.
What happens at the hospital in each case?
With a pre-birth order or Illinois certification. The hospital receives the order, or confirmation of the filing, before delivery. PLS writes the birth plan with the surrogate and the intended parents so the hospital knows who the intended parents are before labor begins. The baby goes to the intended parents. The intended parents sign consents for the baby. The birth certificate paperwork names them.
With a post-birth order. The hospital follows its own policy for the period before the order. Practices vary. Your attorney and the hospital's social work or legal team agree in advance on:
- Who makes medical decisions for the baby until the order is entered.
- Whether the intended parents can room with the baby.
- What name and parents go on the initial hospital paperwork.
- How the baby's discharge works if the order is not yet signed.
This is why the gap matters most when something unexpected happens: an early delivery, a baby who needs intensive care, or a surrogate who needs care herself. A pre-birth order removes the gap. A post-birth order means planning around it.
Either way, the surrogate's own care is hers. She is the patient during and after delivery, and her medical decisions remain hers.
When is an adoption still needed?
An adoption may still be needed when a non-genetic intended parent cannot obtain a pre-birth or post-birth parentage order in the birth state. In that case, a step-parent or second-parent adoption completes that parent's legal status after birth.
Even where an order is available, some attorneys recommend an adoption as an extra layer of protection, especially for families who may live or travel in places that do not recognize parentage orders. Whether a confirmatory adoption is advisable for your family is a question for your attorney.
What do international parents need beyond the order?
A US parentage order makes you the child's legal parents under US state law. International parents usually need more:
- The baby's US passport or travel documents to leave the United States.
- Recognition of parentage in your home country, which follows that country's own rules.
- Citizenship or entry documents for your home country.
A federal executive order signed August 6, 2026, on citizenship for children born through compensated surrogacy to two non-citizen parents is under litigation. Status as of [date], reviewed by counsel.
These steps depend on your country and are covered on the international pages. Jan Telman Berman manages international cycles at PLS and coordinates timing with your attorney.
Who files, when, and what it costs
Who files. The attorneys. In a pre-birth order state, your attorney prepares and files the petition or certification, and the surrogate's attorney takes part on her behalf. PLS does not employ attorneys; it refers to independent reproductive-law attorneys, and you may choose your own. You pay for both attorneys.
When. A pre-birth filing usually happens in the second trimester. A post-birth filing happens after delivery, with paperwork prepared in advance so it can be filed promptly.
What it costs. Legal fees for the parentage step are part of the third-party costs, which total $15,300 to $29,000 at PLS, covering attorneys for both sides, escrow administration, the psychological evaluation, background checks, insurance review, travel and monitoring. A straightforward agreement with a surrogate delivering in a pre-birth state sits at the lower end. A court hearing, a post-birth process, an adoption, or international documents add attorney time.
PLS coordinates the timing with both attorneys and the delivering hospital, so the parentage step is done before it is needed.
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.
- [State statutes and practice for each example in the table, as confirmed by counsel.]