In Part 1, we talked about the confusing hodgepodge that is international and US surrogacy law. In considering surrogacy, you may be hoping to keep things close to home to keep travel costs down and stay close to everyone involved and wondering what the law is here in North Carolina. While North Carolina doesn’t have any specific law regarding surrogacy, most judges in the state will grant intended parents pre-birth orders protecting their status as parents, and North Carolina is considered a surrogacy-friendly state.
There are no statutes or cases in North Carolina that directly address surrogacy, but the courts have created a path to legal parenthood for intended parents. First, a potential surrogate and the intended parent or parents come to an agreement and sign a surrogacy contract. The surrogacy contract [link] protects everyone involved and is almost always upheld by North Carolina courts under standard contract law. Once the surrogate is pregnant, the surrogate and the intended parents file with the court for a declaratory order, called a pre-birth order. If the pre-birth order isn’t granted, intended parents can petition for a post-birth declaratory order declaring them legal parents. If one or both intended parents aren’t granted a pre- or post-birth order, they must move forward with an adoption process.
Pre-birth orders are common in North Carolina but can depend on the genetic relationship between the intended parents and the child. These orders are almost always granted if all intended parents are genetically related to the child. If one of two married intended parents is genetically related to the child, pre-birth orders are usually granted. Married intended parents or a single intended parent are also likely to be granted pre-birth orders. If two intended parents aren’t married and aren’t both genetically related to the child, pre-birth orders vary greatly by judge. Some judges will grant a pre-birth order, some will grant an order only to the related parent, and others will deny the order entirely. Gender or sexual orientation don’t tend to make a difference in getting pre-birth orders. A pre-birth order declares that the intended parents are the legal parents of the child from the time the child is born. The hospital and recording office are instructed to issue a birth certificate with the intended parents’ names on it, and the intended parents are given the authority to make medical decisions for the child once it is born. When the child is born and the birth certificate is issued, the intended parents are the legal parents of the child, and nothing more needs to be done.
If a pre-birth order isn’t granted, petitioning for a post-birth order is the next step. A post-birth order declares that the intended parents are the legal parents and orders a new birth certificate be issued. The only major difference from a pre-birth order is that a post-birth order gives the surrogate time to change her mind about giving the child over to the intended parents after it is born. If a post-birth order is also not granted to one or both of the intended parents, the intended parents must go through the adoption process. This is much longer and more involved process. In North Carolina, adoption is limited to single people, married couples, or the spouse of a parent. Unmarried couples or the unmarried partners of a legal parent are not able to adopt the child.
Pre- and post-birth orders are usually granted in North Carolina, but there is no legal guarantee and outcomes can vary by judge. If an order can’t be obtained, intended parents will have qualify for a North Carolina adoption. If you and your partner want to expand your family by surrogacy, the only way to truly guarantee that both you and your partner can legally be named the child’s parents is to be married.