Alabama ART Attorneys: Surrogacy & PBO’S

Alabama has no laws on surrogacy. We also have no laws stopping it. We’re just neutral. Although there’s a path for couples who wouldn’t be able to otherwise carry a child to have a child of their own, the laws aren’t there to guide attorneys and to protect couples who have the scientific, medical, and financial ability to finally have their own child. Because of this, Alabama attorneys have been utilizing methods from other jurisdictions that appear to have figured this thing out. One of those ways is a Pre-Birth Order. Now, before we get to the Pre-Birth Order and Post-Birth Order, let’s start by getting to know the people who need this… by a little example:


Imagine Kristoff and Anna get married, but after many years of trying, they aren’t able to have a child. They try a multitude of things, but it turns out that Anna’s not meant to carry. Both she and Kristoff are perfectly fine on their own, but there’s some barrier that even “relaxing and not thinking about it” can’t seem to fix.  So, Elsa offers to help Anna. She will carry Kristoff and Anna’s child. Anna and Kristoff go to the doctor and the doctor uses his genetic material, and hers, and creates an embryo. They freeze that embryo creating a snowflake baby (see, she can create snowflakes too!) and then, when the time is right, the doctor transfers Anna and Kristoff’s embryo to Elsa, which becomes a pregnancy.  Technically, that baby is not Elsa’s but she’s carrying it. Because everyone made sure to go see the all wise Trolls and get a Surrogacy Agreement in place, they know that the next step is getting a document to help the hospitals understand what to do next.

But I thought Alabama didn’t have any laws on this…

What do you do when the law isn’t clear? You make things clear by using some common sense. Our jurisdiction is behind but has created a method to this by using other states’ methods.

Let’s process this…

This little snowflake baby is not Elsa’s baby. It is Anna and Kristoff’s. So, we need someone to explain that to the court. With that, we seek a doctor’s affidavit from their village doctor. It explains exactly what measures were taken to make sure that this snowflake baby was NOT Elsa’s baby. This is filed with a petition outlining that they had a Surrogacy Agreement, what medical procedures were undertaken to make sure that this little snowflake genetically belonged to Kristoff and Anna, and that the court should issue an order declaring non parentage of Elsa. Along with that Petition is an acknowledgement of the Agreement with the pertinent portions outlined so that the court understands that these people negotiated and entered in an agreement within the parameters of the law (i.e. we’re not buying babies over here). Lastly, Elsa would acknowledge all of this (sometimes waiving venue and asking not to be part of the proceedings anymore). After all, she must start working on her next power ballad and doesn’t necessarily want to show up for any hearings or hire anyone to file anything extra after she’s done her good deed for the century.

Where does the PBO (Pre-birth Order) come in?

In a perfect world, you file all of this to get your PBO with the Judge and then get it back before anyone sets foot into the hospital. On the day the baby is born, one other document is filed so that there is a Post-birth Order in place so that vital statistics can put the proper parents on the birth certificate. Meaning that Elsa wouldn’t be the mom for Anna and Kristoff’s baby. Now, some people may see this process as signing away rights to the child before it’s born, or terminating parental rights before birth, but if you see it as simple as it is above, you’ll see, it was never Elsa’s snowflake baby. She provided it shelter and a home for nine months, but that baby was Kristoff and Anna’s all along. 

Using the proper timing and legal avenues to keep up with science can truly be magical if we all keep an open mind.

And they all lived happily ever after…