Assisted Reproductive Technology Options for Same-Sex Parents in Virginia
LGBTQ Virginia Family Law Guide
(1) Same-Sex Married Male Couple Using a Carrier in Virginia.
Since marriage equality in Virginia as of October 2014, even though Virginia’s surrogacy statute has not been expressly revised, per the Attorney General’s office, it should be interpreted to apply to same-sex married male couples just as it would for a heterosexual married couple. Accordingly, for a same-sex married male couple, they now should be able to jointly contract with a surrogate or gestational carrier and use the birth certificate amendment administrative process post-birth as well. At birth, the hospital should honor the gestational carrier agreement as the hospital would for a married heterosexual arrangement. Given the issues with the statute not being revised as well as the fact that the birth certificate issuance is only an administrative process that can be challenged, the couple also needs to do an Order of Parentage (as to genetic dad) combined with a step-parent adoption (as to the non-genetic dad).
(2) Same-Sex Married Female Couple Where One of the Females Carries the Child and Uses Her Own Egg and Donor Sperm.
Where one spouse uses her own egg and donor sperm, and delivers the child in Virginia (and provided that a proper comprehensive sperm donor agreement has been executed), a hospital form issued by the Virginia Department of Vital records in January 2015 now 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, the married couple also needs to 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 or spouse contributes her egg to the other partner to carry with donor sperm, 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. Most fertility clinic documents need to be revised for these situations.
In addition, as between the partners, the gestational and genetic moms should enter into a Parenting and Non-Donor Agreement so that the intent to jointly and equally parent is abundantly clear.
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 downside to a step-parent adoption is that the Court 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. Given the intrusion and cost, as well as the fact that some parents prefer the concept of a legal parentage route over a step-parent adoption route, the parentage route may be a preferable option (despite the cost of DNA testing). Moreover, the parentage route arguably can be used if the lesbian couple is not married.
(4) Same-Sex Married Female Couple Who Use a Surrogate or Gestational Carrier.
Because usually one of the two same-sex female partners is capable of
carrying a child, it is a very rare situation whereby they would need to use a third party carrier. However, such situations sometimes do arise. In such event, if one of the partners is contributing her egg, then the situation should be treated the same as where a married heterosexual couple uses a gestational carrier or where a married gay couple uses a gestational carrier as discussed above in Part A(1).
See also: Recommended Adult Books for Gay, Lesbian And Single Parents Who Conceive Children Through Assisted Reproductive Technologies and Recommended Children’s Books for Gay, Lesbian And Single Parents Who Conceive Children Through Assisted Reproductive Technologies