GESTATIONAL SURROGACY LAW VIRGINIA

Is Gestational Surrogacy Legal in Virginia?

Yes. Gestational surrogacy is legal but with many rules and regulations. While gestational surrogacy is permitted under Virginia’s Assisted Conception Statute, the surrogacy laws in Virginia are only applicable to married couples and set out a strict set of regulations and steps to follow before and after the birth of the baby.

Furthermore, as mentioned above, surrogates in Virginia cannot be compensated for their services — which means all surrogacy cases in Virginia must be altruistic and, according to Virginia surrogacy laws, for medical need.

Is Traditional Surrogacy Legal in Virginia?

Yes. Traditional Surrogacy is permitted in Virginia under the Status of Children of Assisted Conception Act as long as the surrogacy meets the requirements set forth in the state statutes.

Is Compensated Surrogacy Legal in Virginia?

No. Virginia surrogacy laws limit a surrogate’s compensation to medical and ancillary expenses that include reasonable costs for housing and other living expenses attributable to the pregnancy. Providing a surrogate a base compensation is illegal.

Creating a Virginia Surrogacy Contract

Surrogacy contracts are permissible in Virginia but they must be in accordance with all requirements. Contracts must include a home study for both the intended parents and surrogate and both parties must be present for a court hearing before a contract can be approved.

These state-approved contracts must also confirm that:

• Intended parents and surrogates have met set standards of fitness
• The surrogate has had at least one pregnancy and is medically capable of carrying another
• The intended mother is infertile or unable to bear a child without risk to her physical or mental health
• At least one intended parent is expected to be the genetic parent of any child born via surrogacy (for the issuance of a parentage order)
• All parties have received counseling
• And more

Surrogacy contracts must be signed by both parties and be court-approved before the medical process of surrogacy can begin.

Because of this lengthy process with strict requirements, many intended parents choose to bypass the pre-approval court and instead draft their own contract and wait until at least until 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.

Determining Legal Parentage in Virginia

Courts do not grant pre-birth orders in Virginia and the statutes on parentage orders can only be utilized by married couples where at least one partner is genetically related to the child. In cases where the intended parents have no genetic relation to their child, the surrogate and her husband (if applicable) are assumed to be the child’s legal parents. Intended parents in this situation often must complete an adoption after birth.

Instead of filing for a pre- or post-birth parentage order, married intended parents can only establish their legal parental rights through either the court-approved model or the non-court approved model.

The court-approved model:

• Requires court’s pre-approval prior to the surrogate’s IVF cycle
• Requires a home study
• Requires a court hearing

The non-court model:

• Requires the intended parents to file a Surrogate Consent and Report Form with the Birth Registrar at least three days following the child’s birth.