What You Need to Know About Surrogacy in Virginia

What You Need to Know About Surrogacy in Virginia

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Virginia Surrogacy Laws and Information

Surrogacy in Virginia, while legal, is a family-building process that comes with many state rules and regulations. While this process is possible here, legally, 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 a bit 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.

Before deciding to pursue surrogacy in Virginia, it’s important that you fully understand the Virginia surrogacy laws that will affect your personal journey. We always encourage you to contact a local surrogacy attorney in Virginia to learn more, but we’ve also answered some common questions about surrogacy in this state below.

Q: Is surrogacy legal in Virginia?

A: Yes, 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. Because these legal requirements are complicated, it’s best to speak with a surrogacy attorney in Virginia for more detailed information on what your surrogacy process may look like.

Q: Is compensated surrogacy legal in Virginia?

A: No. Virginia surrogacy laws limit a surrogate’s compensation to medical and ancillary expenses. Providing a surrogate a base compensation in Virginia is illegal.

Q: Is traditional surrogacy legal in Virginia?

A: Traditional surrogacy is permitted under Virginia surrogacy laws, as long as the surrogacy meets the requirements set forth in the state statutes.

Q: What does a surrogacy agreement in Virginia cover, and how does the legal process work?

A: Surrogacy contracts are permissible in Virginia, but there are many conditions that must be met. A surrogacy contract can be approved by the local court before any medical treatment can begin, but these contracts must include a home study for both intended parents and surrogate, and 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

Because of these strict requirements, many intended parents and surrogates choose to forgo the pre-approval process for surrogacy contracts. Instead, they can draft a surrogacy contract on their own and, three days after their baby is born, file a Surrogate Consent and Report Form with the Birth Registrar.

Whichever path intended parents in Virginia choose, they must work with a local Virginia surrogacy attorney to protect their rights and interests.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Virginia?

A: Virginia surrogacy laws specifically state that surrogacy contracts are permissible, and the conclusion that would follow is that they are indeed enforceable, as long as they meet the standards set forth in the state statutes (if the contract is subject to pre-approval).

Q: What are the surrogacy laws in Virginia on parentage orders?

A: In Virginia, there are two methods of filing for surrogacy parentage orders: before the birth and after the birth. The intended parents’ surrogacy lawyer will file relevant state forms with the Vital Records Office of the Virginia Department of Health (these forms can only be procured directly from the Vital Records Office). If the state receives these forms after the birth of the child, it will issue a new birth certificate with the names of the intended parents.

Again, these statutes on parentage orders can only be utilized by married couples in which at least one partner is genetically related to the child. Otherwise, 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.

It’s important to know that any parentage orders issued in Virginia will be post-birth parentage orders. The state typically does not issue pre-birth orders.

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Virginia?

A: There are no Virginia surrogacy laws that address international intended parents specifically. Therefore, all laws that apply to domestic intended parents would presumably apply to those from another country, as well as any federal immigration and travel policies after the child is born.

Q: When do intended parents need to complete an adoption after birth? 

A: As mentioned above, if neither intended parent is genetically related to their child being born via surrogacy, a post-birth adoption must take place. You should speak with a Virginia surrogacy attorney to determine what additional adoption statutes (if any) would affect this surrogacy process.

Unmarried couples, regardless of their relation to their child, often will be required to complete a second-parent adoption in their own state or a stepparent adoption after marriage in Virginia to establish their parental rights.

Q: Does Virginia allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?

A: Second-parent adoptions are not currently available in Virginia. Couples must be married to obtain post-birth parentage orders in this state. 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.

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 would need to get married to protect their parental rights after surrogacy in Virginia or complete 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 establishes that a gamete donor is not a parent of a child conceived from their donated gamete. 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.

Q: Are there any additional laws impacting same-sex surrogacy in Virginia?

A: There are no specific surrogacy laws in Virginia addressing LGBT intended parents beyond what is mentioned above. Whereas LGBT intended parents previously could not obtain a parentage order because their right to marry was not federally protected, the federal marriage equality ruling allows LGBT intended parents in Virginia to take advantage of the statutes protecting married couples in surrogacy.

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If you are considering surrogacy in Virginia, please speak with a local attorney to learn more about what your individual surrogacy journey will look like. You should only proceed with this family-building path once you are confident it can meet your surrogacy goals and expectations.

If you are considering surrogacy in another state, or are curious about how American Surrogacy can help you reach your surrogacy goals and expectations, please contact our surrogacy specialists at 1-800-875-2229(BABY). Our agency can provide the support and case management services you need to feel safe and secure every step of the way, whether you are a prospective surrogate or an intended parent.

Surrogacy laws in Virginia are always subject to change, so this article should not be taken as legal advice. Please speak to a local surrogacy attorney in Virginia to learn more about the current state of surrogacy and what laws your personal process may be subject to.