How to Get a Pre-Birth Parentage Order in Texas as a Same-Sex Couple

A pre-birth parentage order (PBO) is the legal document that establishes you as your child's legal parents before birth. For same-sex couples pursuing surrogacy in Texas, it's the single most important legal step — and understanding the process will help you navigate it with confidence.

What is a pre-birth parentage order?

A PBO is a court order that directs the hospital and vital records office to list the intended parents — not the surrogate — on the birth certificate. It's issued during the pregnancy, typically in the third trimester, so everything is in place before delivery.

Without a PBO, you could face a complicated legal situation at the hospital. The surrogate could be listed as the mother on the birth certificate, and you'd need post-birth legal proceedings to establish parentage. A PBO avoids all of this.

The legal basis in Texas

Texas Family Code Chapter 160, Subchapter I governs gestational surrogacy agreements. Under this statute, a gestational agreement can be validated by the court if:

• The intended parents are married
• A medical need for surrogacy is demonstrated
• The surrogate has had at least one previous pregnancy
• All parties have independent legal counsel
• The agreement is entered into before embryo transfer

For same-sex married couples, the marriage requirement is satisfied through Obergefell v. Hodges. The "medical need" requirement is generally interpreted to include the inability to carry a pregnancy, which applies to male same-sex couples by definition.

Step-by-step process

1. Hire a reproductive attorney (before matching) — Find an attorney who specializes in Texas surrogacy law and has experience with same-sex parents. Your surrogacy agency should be able to recommend one. Both you and your surrogate need independent attorneys.
2. Draft and sign the gestational agreement — This contract outlines everyone's rights, responsibilities, and expectations. It must be signed before the embryo transfer takes place.
3. Validate the agreement with the court — Your attorney files the gestational agreement with the court for validation. The court reviews it to ensure all statutory requirements are met. If approved, the agreement becomes enforceable.
4. File for the pre-birth order (third trimester) — Around weeks 28–32 of the pregnancy, your attorney files a petition for a pre-birth parentage order. This includes the validated gestational agreement, proof of the genetic relationship (DNA test or affidavit), and the surrogate's consent.
5. Court issues the PBO — The judge reviews the petition and issues an order directing that both intended parents be listed on the birth certificate. This usually happens without a hearing — it's a paper process.
6. Present the PBO at the hospital — Your attorney sends the PBO to the hospital and the vital records office. When your baby is born, the hospital has clear legal direction on who to list as parents.

Married vs. unmarried same-sex couples

The Texas gestational agreement statute is written for married intended parents. If you're married, the process above applies directly to you.

If you're unmarried, the path is more complex:

• Simplest solution — Get married before signing the gestational agreement. This gives you the cleanest legal path.
• Alternative path — The genetic father establishes parentage through DNA testing, and the non-genetic partner pursues a second-parent adoption or a separate parentage order. This varies by county and is more expensive.

Most surrogacy attorneys strongly recommend marriage before beginning the legal process, specifically because it simplifies the PBO.

The genetic connection requirement

Texas courts generally require that at least one intended parent have a genetic connection to the child. For gay couples, this means one partner provides the sperm. The genetic father is established through DNA testing or an affidavit, and the non-genetic father's parentage is established through the gestational agreement and marriage.

If you're using donor sperm (neither partner is the genetic father), the legal process becomes significantly more complex. This is rare for gay couples pursuing surrogacy, but if it applies to you, consult a specialist attorney.

County-by-county considerations

Texas has 254 counties, and judges have some discretion in how they handle surrogacy cases. While the law is statewide, certain counties are known to be more experienced and efficient:

• Harris County (Houston) — Very experienced with surrogacy cases, including same-sex parents. Generally smooth process.
• Travis County (Austin) — Progressive bench, well-versed in surrogacy law. Efficient processing.
• Dallas County — Large volume of surrogacy cases, experienced judges. Reliable process.
• Bexar County (San Antonio) — Growing experience with surrogacy cases. Generally supportive.

Your attorney will file in the county where the gestational agreement was validated. If you have flexibility, your attorney may recommend filing in a county with more surrogacy experience.

Birth certificate options

With a PBO in place, the birth certificate will list both intended parents. You'll typically have two options:

• Both parents listed as "Parent" — Texas updated its birth certificate forms to use gender-neutral "Parent" fields. Your PBO will direct which option is used.
• Specific designation — Some couples prefer "Father" designations. Discuss with your attorney what options are available in your filing county.

The birth certificate issued at the hospital is the original — no amended certificate or adoption is needed. Your child's birth certificate will look the same as any other child's.

Bottom line

The pre-birth parentage order is the legal cornerstone of your surrogacy journey. With an experienced reproductive attorney, the process is straightforward and well-established in Texas's major counties. Start the legal process early, communicate openly with your attorney, and you'll have everything in place well before delivery day.