Surrogacy Laws in Virginia

Fast Facts

• Is Virginia a surrogate friendly state: Depends on the situation.
• Can Parent(s) obtain a birth order without an adoption: Yes, but only in some cases. Virginia only provides for post-birth orders, which can be obtained by opposite-sex or same-sex married parents without the need for an adoption in the following scenarios:

  Married heterosexual couple using their own egg and sperm.

  Married heterosexual couple using a donor egg, donor sperm or a donated embryo as long as the genetic material used is under the legal or contractual custody of the intended parents.

  Married same-sex couple using a donor egg, donor sperm or a donated embryo as long as the genetic material used is under the legal or contractual custody of the intended parents.

  Unmarried single parent using a donor egg, donor sperm or a donated embryo as long as the genetic material used is under the legal or contractual custody of the intended parent.

  Unmarried heterosexual or same sex couples must utilize adoption in order to secure their parental rights.

• Can birth order be obtained without a genetic connection to Child: Yes, but only in some cases.In order for married intended parents to have both of their names placed on the child’s birth certificate via Virginia’s administrative birth certificate process, there must be either a genetic connection between one intended parent and the child OR the intended parents must be able to demonstrate legal or contractual custody of the embryo used.

Summary of Virginia Surrogacy Law

Virginia has codified its laws governing surrogacy and genetic material donation and is entitled “Status of Children of Assisted Conception,” which can be found at Virginia Code Section 20-156, et. seq.

Under Virginia law, married heterosexual and same-sex couples and unmarried individuals are recognized as intended parents. In the area of surrogacy, Virginia has provisions for a court-approved contract process, however because the court-approved process is more costly and somewhat cumbersome, the majority of people pursuing surrogacy arrangements in Virginia utilize the non-court approved process instead. The non-court approved process allows for the negotiation of the contract between counsel for the intended parents and the surrogate and requires that certain statutory requirements be observed in the contract or otherwise included in the contract’s terms. Surrogates in Virginia are entitled to reimbursement for “reasonable medical and ancillary costs” which includes but is not limited to reimbursement for the costs associated with the assisted conception, medical expenses not covered by insurance and reasonable living expenses.

Virginia’s birth certificate process is an administrative process whereby documents are completed by the parties to be submitted to Virginia’s State Registrar of Vital Records to obtain the child’s birth certificate. Three days after the birth of the child, the surrogate (and her spouse) will execute documents terminating their parental rights to the child born as a result of the surrogacy along which will be filed with the State Registrar with the rest of the required

Surrogate Consent and Report Forms. The submission to the State Registrar must be filed within 180 days after the birth of the child. Upon receipt of the necessary documentation, the State Registrar will issue the original birth certificate naming the intended parents as the parents of the child.

Additionally, Virginia provides a statutory framework for intended parents who require a parentage order. The parentage process requires the filing of pleadings with the court and typically does not require a hearing. This is an essential step for same sex intended parents and may be desirable to intended parents who used donated genetic material to conceive their child.

Attorneys specializing in surrogacy law in Virginia

Sherry A. Fox, Esquire
Fox Family Formation
foxfamilyformation.com
(804) 317-3416
9962 Brook Road, #613
Glen Allen, VA 23059
sfox@foxfamilyformation.com