Gestational surrogacy: Permitted by assisted conception statute: Virginia Code § 20-156, but with numerous limitations, including: must be a married hetero couple, GC limited to medical and ancillary expenses, GC cannot relinquish her parental rights until at least three days after birth.
Is pre-birth order possible if doing GS? Theoretically, but not done in practice, because the contract must be pre-validated by the court, which requires a lengthy (and expensive) trial-like hearing before the embryo transfer. As a result, virtually all intended parents proceed without prior contract approval. In these cases, there is no PBO. Instead, the parents, GC, and GC's husband together file a surrogate consent form at least three days after the birth in which the GC relinquishes her legal rights.
Who can do GS in Virginia under assisted conception statute per procedure described above?
- Married couple using own egg and sperm: Yes.
- Married couple using donor: Yes, so long as at least one parent is genetically related. If neither is related, then they must adopt the child.
- Unmarried couple: Do not fit under the assisted conception statute.
- Single parent: Does not fit under the assisted conception statute. If bio-parent is the mother, can use VA Parentage Act to replace GC with bio-mom on birth certificate (post-birth petition for parentage possible if GC unmarried). If bio-parent is the father, he can do single parent adoption after home study.
- Same-sex couple: Do not fit under the assisted conception statute. Can use VA Parentage Act to get bio-parent on birth certificate, but then non-bio parent needs to do second-parent adoption in another state. VA will then honor out-of-state out-of-state adoption orders and place both parents on birth certificate as "parent" and "parent" and issue a new birth certificate.
Is hearing required? No, not usually.
Traditional surrogacy: Permitted under assisted conception statute.
Do results vary much by county? No.