What You Need to Know About Surrogacy in West Virginia

What You Need to Know About Surrogacy in West Virginia

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West Virginia Surrogacy Laws and Information

If you’re considering surrogacy in West Virginia, whether you’re an intended parent or prospective surrogate, you may be wondering: “What are the surrogacy laws in West Virginia?”

It’s an important question to ask, especially when you are considering such a life-changing commitment as surrogacy. Understanding both the legal and practical processes of surrogacy is the first critical step to making sure that this family-building process is right for you.

We encourage all intended parents and prospective surrogates to speak with a local West Virginia surrogacy attorney before moving forward with their surrogacy process. You can also contact American Surrogacy’s specialists with any other questions you may have.

To learn more about surrogacy in West Virginia, find answers to some of the most commonly asked questions about this process below.

Q: Is surrogacy legal in West Virginia?

A: In West Virginia, surrogacy is legal for intended parents and surrogates insofar as there are no surrogacy laws in West Virginia prohibiting the practice. The only surrogacy law in the state regulates commercial surrogacy, stating that it is legal.

It’s always advised that intended parents and surrogates work with a surrogacy professional, like an agency or lawyer, to make sure that they are following the proper West Virginia surrogacy laws every step of the way.

Q: Is compensated surrogacy legal in West Virginia?

A: Yes. A West Virginia statute permits fees and expenses to a surrogate, so commercial surrogacy is legal.

Q: Is traditional surrogacy legal in West Virginia?

A: Yes. Traditional surrogacy in West Virginia is not prohibited by state surrogacy laws.

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

A: Because there are no surrogacy laws in West Virginia governing the process of creating a surrogacy contract, the legal process is coordinated by experienced surrogacy attorneys in this state. Therefore, creating a surrogacy agreement in West Virginia will be similar to creating a surrogacy agreement in any other state with no surrogacy laws.

During this legal process, intended parents and their surrogate will need to be represented by two separate surrogacy attorneys to best protect their rights and interests. These attorneys will negotiate a local document that addresses the goals and needs of each party, including aspects like:

  • 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.

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

A: This is unclear, as there are no surrogacy laws in West Virginia that specifically address the enforceability of surrogacy contracts in this state. Please speak with a surrogacy attorney for more information on this issue.

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

A: In West Virginia, courts are generally favorable to married couples where one or both have used their own gametes in their surrogacy journey. In these cases, the courts will usually issue a pre-birth parentage order. It’s likely that married intended parents who use a donor embryo and have no genetic relationship to their child can also obtain a pre-birth parentage order.

However, whether or not surrogacy courts will issue pre-birth parentage orders to unmarried couples of intended parents is unclear. If this is your situation, please speak with a local West Virginia surrogacy attorney for legal guidance.

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

A: Not specifically. International intended parents will be subject to the same legal processes as domestic intended parents, including any federal immigration laws and policies by which they must abide.

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 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: Intended parents in West Virginia must either get married before their surrogacy to establish their parental rights, or they may travel to another state to obtain a second-parent adoption. Upon their return to West Virginia with the new adoption order, the state Vital Records Office will likely update their child’s birth certificate accordingly.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: As long as an intended parent is married (or a single individual), the use of a donor gamete in a surrogacy will not affect the availability of a pre-birth parentage order. However, any unmarried intended parents who use a donor gamete likely cannot obtain a parentage order for both intended parents — and, because second-parent adoptions are not available, will have a more complicated path of establishing their parental rights.

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

A: No. There are no laws affecting LGBT intended parents that do not also apply to other intended parents, as well.

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Whether you are ready to start your surrogacy in West Virginia or want to learn more, you can always contact the experts at American Surrogacy. Our specialists can explain how surrogacy works, answer any questions you may have, and even refer you to a trusted West Virginia surrogacy attorney for the legal advice you need.

To learn more about our agency program, including the case management and support services we offer, please call 1-800-875-2229(BABY).

While American Surrogacy has made every effort to present up-to-date information, surrogacy laws in West Virginia are always subject to change — and we make no guarantee the information presented in this article is accurate. Please speak with a local West Virginia surrogacy attorney for legal guidance; this article should not be taken as legal advice.