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GESTATIONAL SURROGACY IN WEST VIRGINIA

Gestational Surrogacy is permitted in West Virginia by W.VA Code §61-2-14h(e)(3), which permits “fees and expenses included in any agreement in which a woman agrees to become a surrogate mother.”

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes 
 
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Unclear
  • Unmarried heterosexual couple using an egg donor or sperm donor: Unclear
  • Same-sex couple using an egg donor or sperm donor: Yes but only if married
  • Single parent using own egg or sperm: Yes


Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

  • Married heterosexual couple: Yes
  • Unmarried heterosexual couple: Yes
  • Same-sex couple: Probably, if married
  • Single parent: Yes


What are the bases for venue?  Kanawha County where the Bureau of Vital Statistics is located, or the county of the child’s birthplace
 
Do results vary by venue?  Yes, and results may vary by judge.
 
If yes, are motions to waive venue accepted?  No
 
Is a hearing required to obtain a pre-birth order?  Yes, and the Intended Parents must attend. A notice of the hearing must be provided to the Gestational Carrier, her husband if she is married, and their attorney.
 
Is a pre-birth order possible in West Virginia based on a Gestational Carrier’s plan to deliver in West Virginia, if no party lives in West Virginia? Unclear
 
Will West Virginia Vital Records honor a pre-birth order from another state?  Probably
 
What is the typical time frame to obtain a birth certificate after delivery?  10 days

Same-Sex Couples

How are same-sex parents named on the final birth certificate? Depends:  If there is a court order and parents are legally married, then Parent and Parent.  Otherwise, only the biological parent is named.
 
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?
  Probably
 
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in West Virginia (i.e., neither of the Intended Parents lives in West Virginia)?  Yes, if married
 
If no, will West Virginia Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Probably

SECOND PARENT & STEPPARENT ADOPTIONS FOR WEST VIRGINIA RESIDENTS

Note: This situation typically arises if the child is born outside of the state. The parents reside in West Virginia and then return to West Virginia to obtain a second parent adoption or stepparent adoption in West Virginia.

Will courts in West Virginia grand second parent adoptions or stepparent adoptions to heterosexual couples living in West Virginia? Yes
Does the couple need to be married? Yes

Will courts in West Virginia grant second parent adoptions or stepparent adoptions to same-sex couples living in West Virginia? Yes
Does the couple need to be married? Yes

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  No

TRADITIONAL SURROGACY IN WEST VIRGINIA

Traditional Surrogacy is permitted in West Virginia because no statute or published case law prohibits it.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
David Barnette
dbarnette@jacksonkelly.com
(304) 340-1327
 
Monika Hussell
monika.hussell@dinslaw.com
(304) 357-9924

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