It is wise to sign a Gestational Carrier Agreement before implanting the embryo and to obtain a “Pre-Birth Order” from a court well before the child is born. With a pre-birth order in hand, everyone—the intended parents, the Gestational Carrier, her husband, and the medical providers—can all proceed with more confidence. A pre-birth order is an order from a judge declaring that the baby is the intended parents’ child.
Unfortunately, even those states with laws allowing gestational carrier arrangements usually do not provide a process for obtaining a pre-birth order. North Dakota statutes, for example, do not mention, or provide for, pre-birth orders. Accordingly, the lawyer often ends up explaining an unfamiliar legal process, involving important rights and obligations, to a judge unfamiliar with it all.
Thankfully, judges normally agree: Granting a pre-birth order is a wise and helpful decision.