Documents for Pre-Birth

Adoption and Surrogacy

Pre-Birth Orders

Modern advances in medicine have provided more options to create and expand families. No longer are individuals bound by adoption only to expand their family when conception is not possible. Assisted Reproductive Technologies (ART) provides many options for bringing a child into your life. If you are considering any method of assisted reproduction, such as surrogacy, to expand your family you will need to have various legal documents in place to protect your interests and the interest of the child. These documents can include an egg/sperm donor agreement, embryo agreement, surrogacy agreement, and a Pre-Birth Order.   


What is a Pre-Birth Order? 


A Pre-Birth Order is an Order signed by a Judge that legally establishes the parentage of a child born.  Pre-birth orders are necessary because North Carolina law presumes a woman who gives birth to a child is the biological and legal mother of that child. In addition, if the woman is married there is also a presumption that her spouse is the other parent.  A Pre-Birth Order overcomes those presumptions and provides the hospital with a directive from the Court that the woman who gives birth is a surrogate and not biologically related to the child, or the intended parent(s). 

Other advantages of obtaining a Pre-Birth Order include: 

  • Allowing the intended parents to be listed as parents on the child’s original birth certificate at the hospital. 
  • Allowing the intended parents immediate and unrestricted access to the child at the hospital. 
  • Providing the intended parents the ability to make medical decisions about the child immediately. 
  • Allowing the intended parents to take the child home once released from the hospital. 
  • Reducing additional paperwork and expenses of not having to formally adopt the child, and change the child’s birth certificate. 
  • Protecting the surrogate from unintended parental responsibilities 

Call: (919) 883-4900

How to obtain a Pre-birth Order? 


I am a married lesbian.  My wife is willing to carry a child for us and we would like to use my eggs so that I am genetically connected to our child.  Is that medically possible in NC and if so, what are the legal implications?

Yes, this is called “ovum-sharing” and it can be medically done in NC.  There are, however, many legal issues. First, make sure your fertility clinic has forms for your particular situation.  Do not sign any forms stating you are just an egg donor. And although you both can be listed on your child’s birth certificate, there are still some unresolved issues as to whether one or both of you is a legal parent.  We at NicholsonPham recommend that you also do a stepparent adoption to insure that there is no question that both of you should be considered legal parents.


I am unable to conceive or get pregnant and my husband and I are considering using a surrogate to carry a child for us.  What are some of the issues we should think about and address in a surrogacy agreement?

There are many difficult and complicated issues that should be in every surrogacy agreement.  There should be provisions setting forth all the parties’ intentions as to who shall be the parents, what medical procedures will be used, how many times and over what period of time, what medical and mental health testing shall be done, and restrictions on what the surrogate can and can’t do during a pregnancy.  The harder issues are reaching agreements on abortion circumstances, selective reduction, and what happens if there is a dispute.

Can I use a surrogate in another state or even another country?

Yes, it is possible to contract with a surrogate outside of North Carolina, but only after a thorough investigation has been done to determine the laws of the other state or country.  This often requires working with an attorney in the other state or country. Laws regarding ART and parentage vary greatly and if not done properly, you could end up without parental rights or the ability to bring your child back home.  As a member of the national Academy of Adoption and Assisted Reproduction Attorneys, Sharon Thompson of our firm, can use the many resources of this prestigious organization and its network of national and international attorneys who are experts in ART law, to assist our clients with interstate and national surrogacy cases.

It is imperative to allow enough time to obtain a pre-birth order. Due to the legal procedures involved in obtaining an order,y it is generally recommended to begin the process no later than 20 weeks into the pregnancy. The steps that are necessary to obtain the Order will involve the following: 


  • Obtaining affidavits from all involved parties including assisted reproduction doctors and donor clinics stating the details of the conception, including whose genetic material was used for conception and identifying the intended parents. 
  • Filing a complaint to asking the court to enter an order establishing parentage. The affidavits will also be presented to the court with the complaint. Since ideally, all parties are in agreement, this may be referred to as a “friendly” complaint or action. Either the surrogate or the intended parents may be the petitioners.  This decision will be made in conjunction with your NicholsonPham surrogacy attorney. 
  • The complaint will be served on the responding party.  
  • A hearing may be required. Depending on the Judge’s preference it may be necessary for all parties to appear and give a verbal statement of their intentions and consents. 
  • The Judge will enter the pre-birth order. 


Once a pre-birth order is entered by the court NicholsonPham will coordinate with the hospital registrar and birth and delivery social workers where the baby will be born and provide a certified true copy to the hospital in advance of the birth. This will ensure that the hospital is aware of the situation and that intended parents will have rights to their child. In the event that a pre-birth order is not obtained prior to the birth of a child, a post-birth order must be obtained. North Carolina does not yet have comprehensive laws surrounding surrogacy or ART issues, therefore procedures and requirements in each county may vary. 


It is important to have an experienced and knowledgeable attorney assist you in the complexities of ART law.  At NicholsonPham we work with both intended parents and surrogates to guide you through the process of creating a family. We are dedicated to ensuring that our clients are fully aware of the options and procedures involved in all areas of ART to make informed decisions. If you are in the process of creating a family, or if you are a surrogate in need of advice, contact us for a consultation at (919) 883-4900.