Gestational Surrogacy is permitted under Virginia’s Assisted Conception Statute, but only to Intended Parents who meet the enumerated restrictions. The Intended Parents must be a married couple, the Gestational Carrier’s compensation is limited to medical and ancillary expenses, and in most cases, the Gestational Carrier cannot give her consent until 3 days post-birth.
In theory, the Intended Parents could opt for court approval of the contract before the embryo transfer, although this is not through a pre-birth parentage petition. Rather, this requires a home study and a court hearing. Consequently, almost all Intended Parents decide to bypass such a lengthy process. Instead, the Intended Parents choose to proceed without prior court approval, wait at least 3 days after birth, and then, at least 3 days after birth, to jointly file a Surrogate Consent & Report Form with the Birth Registrar.
Do courts grant pre-birth parentage orders? No
Can both Intended Parents be declared the legal parents under the Assisted Conception Statute through the filing of a Surrogate Consent & Report Form if at least one parent is genetically related to the child?
Note: Some of these parents who do not fit under the Assisted Conception Statute can file for an Order of Parentage under Virginia’s Parentage Act
Can both Intended Parents be declared the legal parents under the Assisted Conception Statute through the filing of the Surrogate Consent & Report Form if neither parent is genetically related to the child?
Note: Some of these parents can adopt the child.
What are the bases for venue? In most cases, the county of the residence is used for venue. However, It varies based on the proceeding.
Do results vary by venue? Possibly.
If yes, are motions to waive venue accepted? Yes, but it depends on the type of action.
Is a pre-birth order possible in Virginia based on a Gestational Carrier’s plan to deliver in Virginia, if no party lives in Virginia? No
Will Virginia Vital Records honor a pre-birth order from another state? Yes, but a Virginia court must domesticate the order.
What is the typical time frame to obtain a birth certificate after delivery? Varies greatly. If expedited, within 2 weeks. If not expedited, can be up to 16 weeks.
How are same-sex parents named on the final birth certificate? Parent and Parent.
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes
Will Virginia Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes, if the out-of-state court order is validated by a Virginia court.
Note: This situation typically arises if the child is born outside of the state. The parents then return to Virginia to obtain a second parent adoption or stepparent adoption in Virginia.
Will courts in Virginia grant second parent or stepparent adoptions to heterosexual couples living in Virginia? Yes, Virginia grants stepparent adoptions.
Does the couple need to be married? Yes
Will courts in Virginia grant stepparent adoptions to same-sex couples who live in Virginia? Yes
Does the couple need to be married? Yes
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? Yes.Virginia’s Assisted Conception Statute specifies that a donor is not a parent.
Traditional Surrogacy is permitted in Virginia under the Virginia Assisted Conception Statute, so long as all the statutory restrictions are met.
State law information provided by the following attorneys practicing Reproductive Law in this state:
Creative Family Connections
Diane S. Hinson
Chevy Chase, MD
Colleen M. Quinn
Other attorneys practicing Reproductive Law in this state:
Zavos Juncker Law Group, PLLC
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