Also known as a parentage petition, the pre-birth order will allow Elizabeth and I to have all of the rights that the delivering woman and her spouse would have at the hospital, including being present in the delivery room, all visitation rights after birth, directing Stephanie to breast feed while in the hospital should we choose to do so and last but certainly not least, directing the hospital to list our names on the birth certificate.
About two months ago I sought out the information we would need to file, hoping that it would be something we could do our own. Unfortunately, there is no online form or step by step guide. Not only does it vary state by state, there are often differences from county to county. It’s based on previous case law and fortunately Massachusetts has some firmly established precedents. Other states are less straight-forward, and some, like New York, do not have an established precedent and parents must go through an adoption process! The fact that Stephanie lives in what is considered a surrogacy-friendly state is another reason for Elizabeth and I feel very fortunate.
Once we hired a lawyer there was a lot of information to collect in order to generate the 16 legal documents required to file a petition. We are filing what is considered an equity complaint – a legal process for getting a fair ruling on a matter that falls outside the jurisdiction of common law. As bizarre as it may sound, Stephanie and Nathan, along with the hospital where she will deliver, are the defendants, and Elizabeth and I are the plaintiffs. Affidavits were submitted by each couple, the delivery hospital, and our doctor who performed the transfer, testifying to our involvement and confirming all of the facts that led to our decision to use a gestational surrogate.
Last week all documents were submitted to the Probate and Family Court of Massachusetts and we now await a court date. It is not expected that any of us need to be present on the date of the hearing. We are all anxious to hear back as the baby is 29 weeks along today! It is very important that we have the order back before Stephanie goes into labor so we have all of the rights and responsibilities to the baby as if there was no gestational carrier involved. It’s interesting to note that as a man I am in a position to assert paternity (so long as Stephanie agrees). No deadbeat dad here! The question of maternity, in the eyes of the courts – barring a pre-birth order – is strictly the woman who gives birth. Therefore, for both of us to be treated as the natural, biological and legal mother and father to our baby and listed as such on the birth certificate, our only option is to file a petition to establish legal parentage. We understand the process we are going through has become less troublesome as the number of gestational surrogacy births increase. We are also working with a lawyer that specializes in this field. We have no reason to worry, but like most first-time expecting parents, it is hard to rely on words and legal precedents alone to help calm your anxious nerves!