GESTATIONAL SURROGACY LAW 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.”
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in West 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 West Virginia.
Is Gestational Surrogacy Legal in West Virginia?
Yes. Statutory law permits gestational surrogacy in this state.
Is Traditional Surrogacy Legal in West Virginia?
Yes. Traditional surrogacy is permitted in West Virginia because no statute or published case law prohibits it.
Is Compensated Surrogacy Legal in West Virginia?
Yes. Compensated surrogacy is legal; a West Virginia statute permits fees and expenses to a surrogate. This is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a West Virginia Surrogacy Contract
There are no surrogacy laws in West Virginia governing the process of creating a surrogacy contract. During this legal process, however, intended parents and their surrogate must be represented by separate surrogacy attorneys to ensure both parties’ interests and rights are protected. These attorneys will negotiate an agreement that addresses at least the following:
- Surrogate compensation and other financial information
- Rights and responsibilities of each party
- Potential risks and complications for each party, as well as the steps to take should they occur
- Agreement on sensitive issues like selective reduction and termination
- Contact expectations before, during and after the surrogacy
- Hospital plans for the surrogate’s delivery
- And more
Once both parties to a West Virginia surrogacy approve and sign this surrogacy contract, the medical process of surrogacy can begin.
Determining Legal Parentage in West Virginia
In West Virginia, pre-birth parentage orders will be issued to married couples and single individuals, in most cases, even if neither intended parent is genetically related to the child but results vary by county and judge.
It is unclear whether courts will issue pre-birth parentage orders to unmarried couples.
Same-Sex Surrogacy in West Virginia
Q: Is Same-Sex Surrogacy Legal in West Virginia?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in West Virginia?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in West Virginia?
A: This is unclear because West Virginia does not have a statutory rule on this. However, since a surrogacy contract is like any other legal contract, it is presumed that the contract would be enforceable. It is important to work with an experienced surrogate attorney to guide you through this process.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in West Virginia?
A: No. International intended parents are subject to the same West Virginia surrogacy laws as domestic 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: This is unclear. Unmarried intended parents who cannot achieve a pre-birth parentage order in a West Virginia surrogacy may need to complete an adoption to establish their parental rights, but this can only be determined by an experienced surrogacy attorney knowledgeable in the process of this state.
Q: Does West 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 available to unmarried couples in West Virginia. Only married intended parents can establish their parental rights with an adoption after birth, if necessary.
Q: If Intended Parents Cannot Complete a Second Parent Adoption, How Can Unmarried Non-biological Intended Parents Protect their Parental Rights?
A: Unmarried intended parents must either get married before their surrogacy to establish their parental rights or they will need to pursue a second-parent adoption outside the state in order to secure their legal parental rights. Upon their return, it is likely, but not certain, that the West Virginia Vital Records Office will update their child’s birth certificate accordingly.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: In most cases, as long as an intended parent is married (or a single individual), the use of a donor egg, sperm, or embryo should not affect their ability to obtain a pre-birth parentage order. However, any unmarried intended parents who use a donor egg, sperm, or embryo likely cannot obtain a parentage order for both intended parents.
Currently, in West Virginia, there is no statute or case law governing the rights, obligations, duties, or interests of an individual donating eggs, sperm, or embryos for the purposes of assisted reproduction.
REPRODUCTIVE LAW PRACTITIONERS
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