As we approach Tommy’s due date the legal side to our surrogacy journey is very much ramping up. If you have been following from the beginning you know that Brandi, Bryan and us have a 38 page Gestational Carrier Contract. Brandi and Bryan have an attorney and Travis and I have an attorney. This contract declared that we are in fact Tommy’s biological parents and Brandi and Bryan are not his parents, amongst many other things that protected both parties.
You would think this would be enough legally to declare Tommy as ours at birth…
But no it isn’t.
Surrogacy law’s differ wildly in every state. Some states are very progressive and it’s more easily done. In others it’s straight out illegal. In most states, including Minnesota, it’s a huge gray area.
Parentage, aka who are the parents, is defined in many states by who births the baby and then who that woman is married to. So you can see the confusion by the state.
In states like Minnesota you file something called a PBO, a pre birth order. Basically all parties sign it and a judge signs off ahead of the birth that Tommy is our child. This means at birth Tommy would be ours in the eyes of the state and we would be done with the legal hoops. We would have legal right to be there during his birth, could bring him home and have our names on his birth certificate.
However in the state of Minnesota it is becoming more and more common that the judge will NOT sign off on a PBO. If the judge doesn’t sign off ahead of Tommy’s birth then we have to file a post birth order.
A post birth order means that we all have to go to court, yes a woman that just gave birth and a newborn included, (can you sense my frustration with the state?) and go before a judge to be declared Tommy’s parents. We would also have to file for temporary custody of Tommy in the interim between his birth and our court hearing to legally be able to leave with him from the hospital and and to keep his birth certificate blank until the hearing. (You can see why having such an amazing team and partnership in Brandi and Bryan is so crucial. We are so lucky and beyond grateful to get to do this with them.)
The pre birth order is currently in draft form. We will know in the next couple of weeks if the judge signed off so we don’t have to go through the hoops of the post birth order.
One of my biggest hopes about trying to bring awareness to surrogacy is that stuff like this STOPS. States need to be more progressive and evolve in their definition of what makes a family.
We will be Tommy’s legal parents one way or another (if the pre order doesn’t work, then you do a post order and if that doesn’t work you do an adoption), but our attorney has NEVER had a post order NOT work so I have zero concerns there. In the end it know it will all be fine. But the hoops you have to jump through…man.