Pre-Birth Orders & Surrogacy / Gestational Carrier Agreements

The birth of a child can be one of the most exciting times in a person’s life. Couples fantasize about the moment when that sweet little bundle of joy is placed in their arms, and they start making plans for his/her future almost at the moment of conception.

Now imagine how terrible it would be to learn that when your child is born not only will the hospital not let you hold your child, but they won’t let you see him/her, or make any medical decisions on your child’s behalf.

For infertile couples conceiving with the help of a surrogate/gestational carrier this unimaginable nightmare can become a reality if proper planning is not undertaken prior to the birth of your child. For couples using a surrogate to carry their child this situation can be avoided with a pre-birth order.

A pre-birth order declares to the world that the intended parents are the child’s legal parents, despite the fact that neither one of them is giving birth to the child. It also requires that the hospital where the child will be born to put the intended parents on the child’s birth certificate.

A pre-birth order is important for a number of reasons: They give the intended parents sole access to the child; gives them the right to make medical decisions for the child; resolves issues relating to insurance coverage; allows parents to take their child home from the hospital; and provides piece of mind for the intended parents.

Pre-birth orders are, however, not available to everyone.  If your surrogate is also the egg donor and is genetically linked to the child you will not be able to get a pre-birth order. You may also not be able to get a pre-birth order where adoption is available and appropriate.

Massachusetts is considered a surrogate and/or gestational carrier friendly state, because unlike other states Massachusetts does not outlaw the practice and our case law evidences an acceptance these situations.  However, it is important to understand that while case law is evolving in the right direction it is still very unsettled.

Presently, there are only two major decisions evidencing an acceptance of pre-birth orders in Massachusetts.  The two cases are  Culliton v. Beth Israel Deaconess, 435 Mass. 285 (2001), and Hodas v. Morin, 442 Mass. 544 (2004). In both cases the intended parents were heterosexual couples who were both genetically linked to the child, and the surrogates had no genetic link to the children. To-date there have been no cases allowing pre-birth orders for same sex couples who are not both genetically linked to the child.

In 2004, the Hodas Court appealed to the Legislature to enact laws dealing with assisted reproductive technology (ART).  Almost nine years later, ART has greatly advanced but the laws have not. If you or someone you know is considering using a surrogate/gestational carrier it can be a complicated process and should not be undertaken without first considering all the risks as well as the rewards.