A Judgment of Parentage offers benefits over both Acknowledgments of Parentage and Adoption Orders for many New York parents. But when you file for Parentage can make all the difference. In New York state, Intended Parents may file for Parentage either after or before the baby is born. This is a boon for New Yorkers planning to expand their family via surrogacy. By securing parental rights early, Pre-Birth Parentage Orders protect intended parents, surrogates, donors, and children alike.

The CPSA and Pre-Birth Parentage Orders

New York’s CSPA provides many benefits, but one of the most impactful is the ability for Intended Parents to petition for a Judgment of Parentage before the child is born. While it is possible to file after the birth and still have Intended Parent’s name(s) added to the child’s birth certificate, there is little to no benefit in waiting.

What Is a Pre-Birth Parentage Order?

With a Pre-Birth Parentage Order (PBPO), the Intended Parents assume the legal status of parent upon the moment the baby is born. The CPSA provides Intended Parents a route to secure Parentage without having to go through the adoption process. Parentage proceedings may commence once pregnancy is established, but the second trimester works best in most cases.

Learn more about the legal process of petitioning for a Pre-Birth Order of Parentage from our article here.

What are the Benefits of Filing a Petition for Parentage Early?

The key advantage of a Pre-Birth Parentage Order (PBPO) is that there is no gap in parentage. Before gestational surrogacy became legal in New York, intended parents often had to wait weeks, months, or longer to adopt their children. The surrogate was the presumed parent, legally speaking—even if not genetically related to the child.

The Risks of Waiting to File for a Parentage Order

For most Intended Parents, the prospect of waiting months for legal parental recognition is inconceivable. A few weeks may seem difficult but more manageable, emotionally speaking. However, a gap in parentage of days—even minutes—can have grave consequences.

Judgments of Parentage must be requested both by the Intended Parent(s) and the Surrogate (and, if applicable, the Surrogate’s spouse). Complications may arise if either the Intended Parent(s) or Surrogate become incapacitated during or shortly after the birth. These may include:

Decision-Making Authority and Consultation

Legal parents do not only make medical decisions for their children; they are also the ones hospitals inform of any developments. For example, the baby may require specialized treatment and monitoring in the Neonatal Intensive Care Unit (NICU).

Without a Judgment of Parentage already filed with the birthing hospital, doctors and staff will consult the presumed parent(s): the Surrogate (and potentially the Surrogate’s spouse). Any updates on the baby’s condition will be filtered through the Surrogate until Parentage is established.

Once healthy enough to go home, the hospital will discharge the baby to the legal parent(s).

Surrogate Incapacitation or Death

The CPSA requires that all Surrogates be informed of the risks of pregnancy, including death. In the event the worst happens, and your Surrogate is incapacitated or even dies, it is crucial that Parentage already be established.

It is entirely possible that the Surrogate’s spouse may become the sole presumed parent. Though they will be bound by a Surrogacy Agreement, the spouse’s attention should be dedicated solely to their spouse, not navigating legal issues concerning parentage.

If the Surrogate is not married, the question of “Who takes the baby home from the hospital?” may become even more fraught.

Intended Parent Incapacitation or Death

Intended Parents are required to complete a valid Will before entering into a Surrogacy Agreement. A Pre-birth Parentage Order further protects the child in the event one or both Intended Parents should die before the birth, or after the birth but before an Order of Parentage is issued. The question of who will assume responsibility for the child is only one consideration. Another is whether the child will inherit any property or benefits from the parent(s), such as life insurance.

Other Considerations

Beyond such emergencies, waiting to file for Parentage can come with other consequences. Factors to consider include:

• Health insurance coverage
• Employment and Family leave benefits
• Traveling and obtaining travel documents

In all these cases, it is highly likely that a CPSA-compliant Surrogacy Agreement will result in legal parentage for the Intended Parents—eventually. It is crucial, however, to not only consider if Parentage can be secured, but when Parentage will be recognized.

A Final Consideration for Families

A Parentage Order is not the only means of establishing legal parental status available to parents who conceive via assisted reproduction. But it is the securest and least costly route for most Intended Parents in New York.

For an overview of three pathways to legal parentage for those utilizing assisted reproduction, and why adoption may be the preferred choice in some cases, see our article on the topic.

NY Surrogacy: Secure Your Parental Rights Early

No one likes to think of the worst. For those parents expanding their family through surrogacy, it is even more critical to plan for it. Discuss your options with your attorney and plan to secure your parental rights as early as possible.

Tully Rinckey attorneys understand that the surrogacy journey can be a time of joy, but also a complex and taxing process. They will handle your matter with the attention and care it deserves. If you have additional questions about Parentage Proceedings in New York State, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

As a Partner with Tully Rinckey’s Albany, NY office, Michael Belksy provides representation in matters relating to divorce, parental alienation, separation agreements, annulments, child custody, child support, modifications to child support and child custody, enforcement of divorce decrees, spousal maintenance, pre- and post-nuptial agreements, orders of protection, and family offenses.