GESTATIONAL SURROGACY IN VIRGINIA

Gestational Surrogacy is permitted under Virginia’s Assisted Conception Statute, which is now entitled “Status of Children of Assisted Conception,” but only to Intended Parents who meet the enumerated restrictions. The Intended Parents must be a married couple or an unmarried individual, the Gestational Carrier’s compensation is limited to reasonable medical and ancillary expenses that include reasonable costs for housing and other living expenses attributable to the pregnancy and, under the statute, the Gestational Carrier cannot give her consent until 4 days post-birth. Lost wages are not an allowable expense.

If the Intended Parents wish to seek court approval of the contract before the embryo transfer, this is not through a pre-birth parentage order. Rather, this is a lengthy process under the statute that requires home studies on all parties, the appointment of a guardian ad litem for the unborn child, and a full trial-like court hearing. Consequently, almost all Intended Parents decide to bypass such a lengthy and expensive process. Instead, the Intended Parents choose to proceed the non-court approval route, wait until at least the 4th day after birth for the Gestational Carrier to sign the birth certificate amendment paperwork, and then file a Surrogate Consent & Report Form with the Birth Registrar.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  No

Can both Intended Parents be declared the legal parents under Virginia’s Status of Children of Assisted Conception statute through the filing of a Surrogate Consent & Report Form 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 both own egg and own sperm: No, but instead they can obtain an Order of Parentage post-birth and then both can be named on the birth certificate.
• Unmarried heterosexual couple using an egg donor or sperm donor: No
• Married same-sex couple using an egg donor or sperm donor or donor embryo: Yes
• Unmarried same-sex couple using an egg donor or sperm donor: No
• Single parent using own egg or sperm with donor egg or sperm or donor embryo: Yes

Note: Some parents who do not fit under Virginia’s Status of Children of 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 Virginia’s Status of Children of Assisted Conception statute through the filing of the Surrogate Consent & Report Form if neither parent is genetically related to the child?

• Married heterosexual couple: Yes, if the embryo that was used is subject to the legal or contractual custody of intended parent.
• Unmarried heterosexual couple: No, the child must be adopted.
• Married same-sex couple: Yes, if the embryo that was used is subject to the legal or contractual custody of intended parent.
• Unmarried same-sex couple: No, the child must be adopted.
• Single parent: Yes, if the embryo that was used is subject to the legal or contractual custody of intended parent.

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. For parentage orders, the City of Richmond can be used as that is where the state registrar is located.

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?  Only if a Virginia court first domesticates the out-of-state order.

What is the typical time frame to obtain a birth certificate after delivery? Varies greatly; can easily take 8-12 weeks.

SAME SEX COUPLE

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 just the biological father? Yes, via an Order of Parentage that declares the carrier or surrogate not a parent.

Can they subsequently obtain a birth certificate naming both fathers? Yes, if they are married and obtain an Order of Parentage in conjunction with a step-parent adoption.

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes, and without a court order if the carrier is not married.

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, and in this case the out-of-state court order does not need to be domesticated by a Virginia court.

SECOND PARENT & STEPPARENT ADOPTIONS FOR VIRGINIA RESIDENTS

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

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?  Yes. Virginia’s Status of Children of Assisted Conception statute specifies that a donor is not a parent.

TRADITIONAL SURROGACY IN VIRGINIA

Traditional Surrogacy is permitted in Virginia under Virginia’s Status of Children of 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
dhinson@creativefamilyconnections.com
www.creativefamilyconnections.com
(240) 235-6006

Colleen M. Quinn
Richmond, VA
quinn@lockequinn.com
www.quinnlawcenters.com/law-centers/adoption-and-s…
(804) 545-9406

Other attorneys practicing in this state:

Jennifer Fairfax
jennifer@jenniferfairfax.com
http://www.jenniferfairfax.com

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