Janene Oleaga, Esq.
What is a Judgment of Parentage?
Updated: Jan 4
A judgment of parentage is a legal document naming you the legal parents of your child. Obtaining a judgment of parentage, whether a pre-birth order or a post-birth order, is a necessary step in any surrogacy journey. Judgments of parentage or confirmatory adoptions are also essential for parents of donor conceived children.
What is a pre-birth order?
A pre-birth order is a judgment of parentage obtained prior to the birth of the child.
In a surrogacy journey, pre-birth orders ensure the intended parents are recognized as the legal parents of their child from the moment of birth. This pre-birth order enables intended parents to have their names placed on the child's birth certificate, to make all medical decisions for the child, and to leave the hospital with the child.
In every state, there is a presumption that the woman who gives birth to a baby is that child's legal mother. In cases of gestational surrogacy, a pre-birth order overcomes the presumption that the birth mother is the legal mother of the child and instead recognizes the intended parents as the legal parents of the child. This is in the best interests of the child, the best interests of the intended parents, and the best interests of the gestational surrogate.
For donor conceived children, a pre-birth order can enable both the gestating intended parent and non-gestating intended parent to have equal-parental status from the moment of birth - regardless of genetic connection to the child. Many lesbian couples conceiving with the assistance of donor sperm choose to pursue a pre-birth order during the pregnancy so they are both recognized as legal parents.
What is a post-birth order?
Post-birth orders secure parentage in the same way as their pre-birth counterparts, except they are not obtained until after the birth of the child. To obtain a post-birth order, your surrogacy lawyer will will petition the court to name you as the legal parents of your child at some point after the birth and request the court direct that the child's birth certificate be amended to include your names as parents.
Depending on state law, a post-birth order may be the only option available, as some states do not have a process for intended parents to obtain a pre-birth order. International intended parents may choose to obtain a post-birth order as part of their surrogacy journey for a number of reasons depending on the laws of their home country. Some surrogacy journeys require both a pre-birth order of parentage and a post-birth order of parentage for the benefit of all parties.
Why do I need a judgment of parentage?
A judgment of parentage and an order of parentage, whether obtained pre-birth or post-birth, are different terms for the same thing: a court order declaring legal parentage. Absent this court order, the parentage of children born through assisted reproduction may be uncertain.
In a surrogacy journey, if you fail to obtain a pre-birth order of parentage before your child's birth, your child may be unable to be discharged from the hospital to your care. You may also be unable to make legal or medical decisions for your child. Absent a court order directing such, you may be unable to appear as parents on your child's initial birth certificate (though birth certificates including your name as a parent can be obtained through an amendment process at a later date).
For children born through assisted reproduction, failing to secure the legal parentage of the non-gestating intended parent, or non-genetic intended parent, can have disastrous consequences. There have been countless news articles reporting on the refusal of certain states to recognize the parentage of the non-gestating or non-genetic parent. (i.e., Judge Orders Lesbian Mother Removed From Child's Birth Certificate)
Without an order of parentage your family is vulnerable.
Challenges to your legal parentage could be brought by other individuals, courts, state legislatures, and other parties. Uncertainty surrounding who your child's legal parents are, legally speaking, is not in the best interests of your child. Having a court declare your legal parentage provides certainty, stability, protection, and declares legally what you already know to be true.
In New York, the enactment of the Child-Parent Security Act (2021) legalized gestational surrogacy in New York. The Child-Parent Security Act also provides a process for parents of donor conceived children to obtain court judgments declaring their legal parentage. This was previously unavailable in New York.
The CPSA focuses on intent and consent when determining a child's legal parentage, as opposed to traditional definitions of parentage based on biology or marital status.
"But I'm On The Birth Certificate"
I hear this from my clients a lot, and I understand the false feeling of security a birth certificate bearing your name can provide. A birth certificate is an administrative document and is not entitled to the same protections as a court order. A court order issued in one state is entitled to full faith and credit in all other states. Orders of parentage obtained in one state must be upheld in the courts of another state. Full faith and credit does not extend to birth certificates. Basing parentage solely on the existence of a birth certificate is tenuous and does not alone secure legal parentage.
Securing Your Legal Parentage
The process to securing your legal parentage depends on the laws of your state of residence. Consult with a family formation lawyer familiar with the laws and processes available to you and your family. If you have questions about whether to pursue a second parent adoption, stepparent adoption, or other judgment of parentage, start here.
“I don’t think it matters how many parents you’ve got,
as long as those who are around make their presence a good one.”
― Elizabeth Wurtzel