GESTATIONAL SURROGACY LAW VIRGINIA
Virginia’s Assisted Conception Statute, entitled the Status of Children of Assisted Conception Act, permits surrogacy and upholds the enforceability of any surrogacy contract that complies with the statutory requirements but surrogacy is a complex process in this state. While surrogacy is legal, it favors married intended parents who have at least one genetic connection to the child born via surrogacy. If you are an intended parent who doesn’t meet these criteria, your Virginia surrogacy process will be more difficult.
In addition to regulations on intended parents, 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.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Virginia, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in 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.
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The court-approved model:
- Requires court’s pre-approval prior to the surrogate’s IVF cycle
- Requires a home study
- Requires a court hearing
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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.
Same-Sex Surrogacy in Virginia
Q: Is Same-Sex Surrogacy Legal in Virginia?
A: Yes. However, the same strict rules and regulations that apply to heterosexual intended parents (i.e, must be married with one partner having a genetic connection to the child born via surrogacy).
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Virginia?
A: No. There are no additional laws impacting same-sex parents in this state.
FAQ’s
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Virginia?
A: Surrogacy contracts are enforceable if they are in writing and signed by all parties. The contract must be court-approved prior to beginning medical procedures and found in accordance with all requirements. There must be no agreement to provide compensation beyond that explicitly allowed under the statute for medical expenses and ancillary costs.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in Virginia?
A: No. There are no Virginia surrogacy laws that address intended parents specifically. All laws that apply to domestic intended parents also apply to international intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: If neither intended parent is genetically related to their child being born via surrogacy, a post-birth adoption must take place.
Q: Does Virginia Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: No. Second-parent adoptions are not permitted in Virginia; couples must be married to obtain post-birth parentage orders. Unmarried couples would potentially need to return to their home state to secure a second-parent adoption, or get married to complete a stepparent adoption in Virginia.
Stepparent adoptions are permitted and are available to married couples.
Q: If Intended Parents Cannot Complete a Second Parent Adoption, How Can Unmarried Non-biological Intended Parents Protect their Parental Rights?
A: The only way unmarried non-biological intended parents can protect their parental rights is through marriage or by completing a second-parent adoption in another state. As long as a Virginia validates a second-parent adoption order from another state, Vital Records will usually honor the out-of-state order and add the second parent to the birth certificate.
Q: What Happens in Cases Where Intended Parents use a Donor Egg, Sperm or Embryo?
A: Virginia’s Assisted Conception Statute specifies that a donor is not a parent. If at least one member of a married intended parent couple is genetically related to their child, a post-birth parentage order can typically be obtained. However, a non-genetically related intended parent who is not married to the biological intended parent will usually need to complete an adoption after birth.
REPRODUCTIVE LAW PRACTITIONERS
Jennifer Fairfax
Spring, MD (licensed in VA)
JFairfax@jenniferfairfax.com
(301) 221-9651
Catelyn Slattery
Spring, MD (licensed in VA)
Catelyn@jenniferfairfax.com
(240) 245-7765
James W. Dudley
Bluefield, VA
dudleylawfirm@aol.com
(276) 322-3454
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