What is a PBO?

If you want to become a surrogate or intended parent, you have probably come across the term “pre-birth order”, which is abbreviated as PBO.  “What’s a PBO?,” you may be asking yourself.  Well, this surrogacy lawyer is here to demystify this term.

A pre-birth order refers to a court judgment that establishes or affirms the intended parents’ legal parental rights to a child conceived through gestational surrogacy.  And, similarly, the PBO establishes or affirms that the gestational carrier has no legal parental rights for this child.  If the surrogate is married, her spouse might also be included in the court order to clarify that he (or she) is also not a parent of the child resulting from surrogacy.  Why is this so important?  Well, you need a clear order from a court to be able to get and/or keep the intended parent’s names on the child’s birth certificate (and to make sure that the surrogate’s name never goes on the birth certificate). 

Now, a pre-birth order can be called many different things.  In Massachusetts and Colorado and Montana, for example, it’s a “pre-birth order.”  But in New Hampshire, it’s called a “parentage order.”  And next door in Vermont, it’s known as a “birth order.”  In Washington State, the courts use the term “final pre-birth parentage order.”  Less important than the name is what the court order does and what the process is to make that happen. 

Generally, the process involves the surrogate and the intended parents submitting some paperwork to the court during the second trimester of the surrogate pregnancy.  An affidavit from the reproductive endocrinologist (RE AKA fertility doctor) is also submitted to the court; this affidavit explains how the pregnancy was established through an embryo transfer.  Often, the court will want to know the original source of the eggs and sperm.  The court may or may not hold a formal hearing on the case.  Ultimately, the court will issue the pre-birth order and send it off to the lawyers.  How long does this process take?  Anywhere from 24 hours in technologically efficient courts to 4 months in remote courts with judges that only rotate through on an occasional basis.  Once the PBO is issued, your lawyer or agency will make sure the document gets where it needs to go to make the birth certificate process go smoothly. 

There are definitely some variations to this process, depending on your state and situation.  For example, some court orders are obtained before the embryo transfer (hello Utah!) while in other places the process is done post-birth (Idaho, we’re talking about you!).  In some jurisdictions, you can pick the court you file the paperwork, while in other places you have only one court option.  In some states, the intended parents file a lawsuit against the gestational carrier (Massachusetts is a good example of this!) while in other states the process is made more friendly with a joint petition.  Sometimes the surrogacy contract will need to be submitted to the court (for example, this is required under New Hampshire court rules), and sometimes it doesn’t.  Sometimes everyone has to go to court for a full hearing, sometimes a quick hearing is done via phone/video, and sometimes the judge just reviews the paperwork and there’s no need for a hearing at all.  In some states, judges may be savvy enough to question “natural cycles” and insist upon a DNA test for the baby, while in other places judges won’t make this request.  On rare occasions, donors may need to be involved in the process.  And so on.  There are lots of variations on how to do this.  That’s why I say talk to your lawyer who can explain all the specifics that apply to your particular situation and circumstances.      

So those are the basics of pre-birth orders.  Are you ready to take the next step and want to talk to a past gestational carrier about becoming a surrogate?  Get in touch with us today and speak with one of our intake coordinators for more info.