Surrogacy is legal in Virginia, but there are several legal provisions that make surrogacy law in the state unique. We explain how Virginia surrogacy laws work and answer some frequently asked surrogacy questions.
Surrogacy in Virginia: What You Need to Know
Surrogacy describes any arrangement where a woman carries a child on behalf of another couple. Surrogacy is legal in Virginia and provides a life-changing option for couples who meet all the legal requirements.
Virginia law provides for individuals, married couples (including same-sex couples) and unmarried couples where they are using both of their gametes. Virginia law even provides for individuals or a married couple to use a donated embryo or an embryo formed from donor parts.
Both traditional surrogacy (where a surrogate conceives using her own eggs via artificial insemination) and gestational surrogacy (where the surrogate bears an implanted embryo) created from genetic material and/or donor parts are legally recognized in Virginia. However, gestational surrogacy is preferred as it is clearly enforceable while in Virginia a true surrogate who has genetic ties to the child has the ability to void the surrogacy agreement.
Virginia law requires that at least one parent be a genetic parent of a child, or that the parent(s) be able to show legal ownership of a donated embryo (or of the donor eggs and sperm used to create the embryo).
Virginia does not have a procedure to obtain surrogacy “pre-birth orders” in the same way that other states do. However, Virginia courts will domesticate and give full faith and credit to pre-birth orders from other states. In addition, Virginia law provides for the ability to get a post-birth parentage order if one is needed. For domestic heterosexual married couples or for an individual, a simple post birth administrative process can be utilized to obtain the birth certificate naming the intended parent(s) as the legal parent(s) and no court order is necessary.
All intended parents and surrogates in Virginia must enter into an independent contract before any embryo transfer or artificial insemination procedure takes place. In these cases, it is crucial that the contract be drafted, or at least reviewed, by a Virginia adoption and surrogacy lawyer to make sure it meets the standards for enforceability.
Finally, Virginia differs from several other states in that, while payments can be made to the surrogate, compensated surrogacy in any form is banned in the Commonwealth. Instead lawful payments can be made to a surrogate or gestational carrier so long as they are characterized as being made for medical, legal, living and other ancillary expenses.
Furthermore, lawyers and agencies cannot receive any payment for inducing intended parents and surrogates to match with each other. This is called the Virginia “anti-surrogacy broker statute.”
Virginia Surrogacy Law: Frequently Asked Questions
Surrogacy law can be complex. This is why it is important to get expert advice from a fully qualified Virginia surrogacy and adoption attorney like Quinn Law Center’s Adoption & Surrogacy Law Center about your particular case from the start.
Here are some further frequently asked questions about how surrogacy contracts work in Virginia.
Can I Use a Surrogacy Program to Match Me if I Live in Virginia?
No. Not unless the program rewrites its arrangement to state that the match itself is at no charge. Virginia has an anti-surrogacy broker statute that has both civil and criminal penalties. So if a surrogacy program is used and a match fee is being charged, then use of such program would be aiding and abetting in violating a criminal statute.
Do I Have to Have a Written Contract to Pursue Surrogacy?
Yes. Legal parentage may not be established without a contract and most fertility clinics require a contract in place prior to beginning medical procedures.
Do You Have to Live in Virginia to Have a Surrogacy Contract There?
No. As long as one side of the arrangement is based in Virginia, or the fertility clinic is based in Virginia or the birth is expected to occur in Virginia, the contract can be drafted under Virginia law. Even if the child is to be born in another state, most other states can use a Virginia based contract to obtain a pre or post-birth parentage order.
Does the Gestational Carrier Have to Have Her Own Attorney?
Yes.
Who Pays for Her Representation?
The intended parents pay for her representation.
How Much Does This Typically Cost?
Anywhere from $1,600 to $2,500 depending on the revisions needed. For example, we charge more if we both represent the surrogate-carrier and also have to revise the contract to conform with or be written under Virginia law if it was not initially written under Virginia law.
To avoid any potential conflict of interest where we represent the intended parents, we refer gestational carriers to outside a list of a handful of qualified attorneys who work in this practice area and charge $1,600 to $2,000. But, of course, a gestational carrier may pick any qualified attorney of her choosing.
What Payments Can Be Made to a Gestational Carrier in Virginia?
Intended parents usually cover all medical and legal expenses for the gestational carrier. Any additional money received by the gestational carrier each month should be in proportion to and less than her total monthly household income because it is categorized as reimbursement for ancillary and household living expenses.
We can provide intended parents with guidance on these reimbursement amounts for any specific surrogacy arrangement so that payments do not run afoul of Virginia law.
Are a Gestational Carrier’s Medical Expenses Covered by Insurance?
All or most of the gestational carrier’s medical bills should be covered by her health insurance or health benefit plan. If she does not have a health benefit plan, then typically the intended parents will make arrangements to pay for the carrier to obtain a plan. This is usually during open enrollment under the Affordable Care Act.
Does Virginia Have a Pre-Birth Process for Parentage Orders?
No. However, the courts in Virginia will domesticate and give full faith and credit to out of state pre-birth orders. Also, there is a process under Virginia law that is almost never used whereby a court can “bless” any surrogacy contract prior to any medical procedures taking place. This process is expensive and onerous and requires home studies to be done and a guardian ad litem, an attorney appointed by a judge to assist the court in determining the circumstances of a matter before the court, to be appointed. It should not be confused with a pre-birth order.
What If a Pre-Birth Order Is Obtained in Another State?
We are able to have a Virginia court register and recognize out-of-state pre-birth orders and can do so prior to the birth. We then use this to get the amended birth certificate.
Can You Get a Parentage Order in Virginia?
Yes. Unless the parties have an order from another state, we can obtain a post-birth parentage order in Virginia. We recommend that single intended parents, same-sex intended parents, and foreign intended parents obtain a Virginia post-birth parentage order in addition to the birth certificate.
How Soon After the Birth Can a Parentage Order be Obtained?
Typically four to eight weeks—if expedited then, ideally, four weeks.
How Is the Birth Certificate Obtained Naming the Intended Parent(s)?
Virginia has a post-birth administrative process for obtaining the birth certificate naming the intended parent(s). This is separate from the post-birth parentage order process.
How Long Does It Take to Obtain a Birth Certificate?
We can usually have the application for the birth certificate submitted 1-2 weeks after birth if all parties have returned the documents needed. Unfortunately, we have no control over the speed at which Virginia processes the application.
The state is currently producing birth certificates 4-5 months after applications are submitted, but sometimes faster. It is sometimes possible to expedite processing for foreign parents at an additional charge, but even with expediting it can take up to 10 weeks in some cases.
Can Both Intended Parents Be Listed on the Birth Certificate?
Yes.
Even If the Intended Parents Are Not Married?
Yes, If both their own egg and sperm were used, then a post-birth parentage order can be obtained and that is used to establish a birth certificate naming both of them. If any donor parts are used then a post-birth order of parentage can be obtained as to the genetic parent in conjunction with a second parent adoption as to the non-genetic parent. That order is then used to place both names on the birth certificate..
Even If They Are a Same-Sex Couple?
Yes.
Can Intended Parent(s) Use Donor Embryos or All Donor Gametes?
Yes, as long as they can show full legal ownership and custody of all embryos or gametes.
Can You Represent Both a Gestational Carrier as Well as Handling All the Parentage Order and Birth Certificate Processes?
Yes, although in some cases, it might be necessary to recommend that the intended parents also have outside counsel to avoid any potential conflicts of interest.
Can Foreign Parent(s) Obtain Apostilles for Both Documents?
Yes. Apostilles for both the parentage order and birth certificates take 3-4 days to process.
Any Special Issues for Foreign Intended Parent(s)?
We tell foreign families to expect to remain in the U.S. for at least 2 months post-birth. We will do whatever we can to expedite processing. Also, we will usually consult with the intended parents’ foreign counsel to make sure we provide the right documents to obtain citizenship for the child and full parentage in the foreign country.
What Is the Typical Timeline for Drafting a Surrogacy Contract?
After all prerequisite documents are received from clients, allow 10-14 days for the initial contract drafting. Allow up to a month for the entire process to get the contract into final form. We charge an expedite fee if the contract must be drafted in 10 days or less.
Smart Surrogacy Choices With Quinn Law Centers
If you are considering growing your family through surrogacy in Virginia, it’s important to consult with attorneys who are qualified and fully conversant in the laws governing surrogacy and assisted reproduction technologies as well as adoption in the state.
A Virginia surrogacy and adoption attorney can help you:
- Negotiate a fully enforceable independent surrogacy contract
- Obtain amended birth certificates and parentage orders
- Navigate expedited situations and unusual situations such as when the intended parents are not married
- Advocate on your behalf and protect your interests
Quinn Law Centers Adoption and Surrogacy Law Center founder Colleen M. Quinn is a pioneer in Virginia’s evolving family law. Contact her today to schedule a consultation, or click below for an expert view of how Virginia surrogacy law may affect your family-building plans.