As of May 2022
Family formation for singles and same-sex couples in Virginia has become much easier since marriage equality occurred in October 2014 and since major changes were made to Virginia’s Status of Children of Assisted Conception effective July 1, 2019. Whether married, unmarried or single, there are a variety of options available for family building, especially with advances in medical technology. With the recognition of second parent adoption in Virginia effective July 1, 2020, more options also now are available for unmarried Virginia couples.
A. Assisted Reproductive Technology Options for Single Parents in Virginia.
(1) Single Intended Mother Uses Donor Sperm.
The simplest assisted reproductive technology method for a single parent in Virginia is when the intended mother obtains donor sperm (known or anonymous) and is artificially inseminated and carries her own child. Whether the sperm donor is known or anonymous, all that is required as far as parental rights are concerned is a very sound and comprehensive sperm donor agreement. Because many fertility clinics do not have adequate sperm donor agreements, nor any agreement at all between the donor and the recipient, it is very important for the single intended mom to protect herself by ensuring such an agreement is executed (that is, a sperm donor agreement directly between her and the donor – not just an agreement with the clinic). Important issues should be addressed such as the provision of future medical information, donor identity disclosure, donor registry, and future donor contact. Even if the donor is anonymous, it is relatively easy to have such an agreement put in place.
At birth, the intended mother is listed on the birth certificate and the father is left blank.
(2) Single Parent Adoption.
Single parent adoption is well established in Virginia law and is an option for a single male or female. Unless the adoption is of a close relative that has been in the adoptive parent’s home for at least two years, the adoptive parent will need to have a home study done. The adoptive parent can adopt within Virginia or can adopt a child from another state. Typically, the adoption is either an agency adoption or a parental (private) adoption. While single parents can adopt from foreign countries, there are a limited number of countries that will permit a single parent (as opposed to a married heterosexual couple) to adopt. Single parents also can adopt children out of foster care. All of the intricacies and legal processes of a single parent adoption are beyond the scope of this article.
(3) Single Intended Mother Contributes Her Own Egg and Uses a Gestational Carrier.
Virginia’s surrogacy statute, Virginia Code section 20-156, et. seq., Status of Children of Assisted Conception, as of July 1, 2019, applies to both single parents and married intended parents using a gestational carrier. Typically, the intended mother and the gestational carrier (and the carrier’s spouse if applicable) enter into a non-court approved gestational carrier agreement. Also a comprehensive sperm donor agreement should be executed as discussed above in Part A(1). Upon birth, the single mom gets placed on the birth certificate and no father is listed.
For foreign single parents, or for a domestic single parent who just wants more legal security, a court order also can be obtained. For that, DNA testing must be conducted after the birth to confirm that the intended mother is the genetic mother. Also the sperm donor agreement or release will need to be included as part of the filing. Then, by utilizing Virginia’s Parentage Act, found at Virginia Code section 20-49, et. seq., an Order of Parentage can be obtained after the birth. Such an order declares that the intended mother is the sole legal and genetic parent.
(4) Single Intended Mother Does Not Use Her Own Eggs (is Not Genetically Related) and Uses a Gestational Carrier Who Carries Donor Embryos (or Donor Egg and Donor Sperm).
Since July 1, 2019, it is permissible for a single intended mother to use donor embryo (or a combination of donor egg and donor sperm) along with a gestational carrier, as long as she can show legal or custodial ownership of the embryo that was used. After the birth, the administrative birth certificate process is used to place only the intended mother on the birth certificate. It is critical to have clearly written donor agreements in order to show the legal or custodial ownership. As noted above, it also is possible to obtain a court order under Virginia’s Parentage Act should a court order be desired.
(5) Single Intended Father Uses His Own Sperm With Donor Egg and a Gestational Carrier.
Since July 1, 2019, a single intended father no longer has to do an adoption if he uses his sperm along with donor egg and a gestational carrier. Again it is important to have a clear donor release or donor agreement for the donor egg. After the birth, the administrative birth certificate process is used to place only the intended father on the birth certificate. It also is possible to obtain a court order under Virginia’s Parentage Act should a court order be desired.
(6) Single Intended Father Uses a True Surrogate (Who Contributes Her Own Egg) with His Own Sperm.
Since July 1, 2019, a single intended father in Virginia can use a true surrogate (meaning that she is the genetic or biological parent) who is artificially inseminated with the intended father’s sperm. However, a true surrogate in Virginia can void the Surrogacy Agreement and keep the child which makes this very risky, although it is legal. Should the surrogate change her mind and refuse to transfer custody of the child to the intended father, then even though the intended father is the genetic father, at best he would have a custody case and may end up with some sort of custody and/or visitation arrangement with the surrogate as well as in all likelihood a child support obligation. So long as the surrogate did not change her mind and adhered to the agreement, then the administrative birth certificate process is used to place only the intended father on the birth certificate. It also is possible to obtain a court order under Virginia’s Parentage Act should a court order be desired.
(7) Intended Parent or Carrier Live in Another State or Child is Born in a State Other Than Virginia.
If either the single intended parent or the carrier resides in another state – then other options offered by the other state should be considered and, if possible, utilized to accomplish the objectives of the parties. Moreover, whether the child can be born in another state that has more advantageous laws also should be evaluated.
(8) SIngle Intended Father Using Donor Embryo (Donor Egg and Donor Sperm) with a Gestational Carrier.
Since July 1, 2019, it is permissible for an intended father to use donor embryo (or a combination of donor egg and donor sperm) along with a gestational carrier, as long as he can show legal or custodial ownership of the embryo that was used. After the birth, the administrative birth certificate process is used to place only the intended father on the birth certificate. It is critical to have clearly written donor agreements in order to show the legal or custodial ownership. As noted above, it also is possible to obtain a court order under Virginia’s Parentage Act should a court order be desired.
B. Assisted Reproductive Technology Options for Married Same-Sex Parents in Virginia
(1) Same-Sex Married Couple Using a Carrier in Virginia.
Effective July 1, 2019, Virginia’s surrogacy statutes were made gender neutral thus making it clear that same-sex couples, whether male or female, can legally use a gestational carrier. The couple can use an Intended Father’s sperm with donor egg (for two dads), or Intended Mother’s egg with donor sperm (two moms), or donor embryo (dads or moms so long as they show legal or custodial ownership of the embryos). After the birth, so long as they have a non-court approved gestational carrier agreement in place, the couple can use the post-birth birth certificate amendment administrative process. At birth, the hospital is to honor the gestational carrier agreement as the hospital would for a married heterosexual arrangement.
To best secure the legal parentage, the couple also can and should obtain a parentage order which is done utilizing Virginia’s parentage statutes.
(2) Same-Sex Married Female Couple Where One of the Females Carries the Child and Uses Her Own Egg and Donor Sperm.
Where one half of the couple uses her own egg and donor sperm and delivers the child in Virginia, provided that a proper comprehensive sperm donor agreement has been executed, and assisted conception is used, she will be the genetic and legal parent of the child and, as of July 1, 2019, her spouse will be the other presumed legal parent. A hospital form issued by the Virginia Department of Vital records in January 2015 permits the gestational mother and her wife in such a situation to both be listed on the birth certificate. Since being listed on the birth certificate alone is not a guarantee of legal parentage, and can be challenged since it is only administrative in nature and not a judicial order, the married couple also should do a step-parent adoption.
(3) Same-Sex Female Couple where one Female “Contributes” Her Egg to the Other to Carry.
Where one half of the couple contributes her egg to the other partner to carry with donor sperm (sometimes called reciprocal IVF), again a clear sperm donor agreement and release should be obtained. The genetic mother needs to be very clear in any agreements with the fertility clinic that she does not intend to be a donor (which arguably would preclude her from having any parental rights) but that she intends via her contribution to be a parent. Upon birth, the moms have two options: to use the Parentage Act and DNA testing to establish that the genetic parent is a legal parent along with the gestational parent or to do a step-parent adoption. The small possible downside to a step-parent adoption is that the Court still has the discretion to enter an Order of Reference requiring the Department of Social Services to do an investigation and report. The cost of this can be assessed against the family but is nominal although intrusive. It is rare that a court will require this anymore and these adoptions often are simply called “confirmatory” adoptions. Moreover, under the US Supreme Court Ruling of V.L. v E.L. in 2016, all adoption orders are to be given full faith and credit throughout the United States.
For non-married couples utilizing reciprocal IVF, they can either do the parentage order or a second parent adoption.
C. Same-Sex Unmarried Couples in Virginia Using a Gestational Carrier.
Same-sex unmarried couples can use a gestational carrier but Virginia’s surrogacy statutes do not expressly provide for such. Typically, they still will enter into a non-court approved contract and then, after the birth, any genetic parent can be established via DNA testing and a parentage order. Then, so long as they live in Virginia, they can do a second parent adoption as to the other parent.
Copyright © 2022 by Colleen Marea Quinn
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