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STATE SURROGACY LAW:

Virginia Surrogacy Laws

Overview

Although surrogacy is permitted by law in  Virginia, there are several provisions and procedures that make the state unique. Virginia laws, which are based on the Status of Children of Assisted Conception Act, permit both gestational and traditional surrogacy. However, specific legal requirements must be met.

In addition to the legal requirements, there are two different paths to establish parentage: the court-approved model; and the non-court approved model. The court-approved model allows surrogacy contracts to be pre-approved by the court prior to a surrogate IVF cycle. However, this process requires both a home study and a court hearing. Many Intended Parent(s) instead chose to pursue the non-court approved model and file a Surrogate Consent and Report form with the Birth Registrar three days after their child is born.

It’s important to note that there is an absolute prohibition against surrogacy agencies operating in Virginia. Under Virginia law, it’s a felony to match surrogates and Intended Parent(s). Agencies may recruit surrogates or work with Intended Parent(s) from the state of Virginia, but no agency can be based there.

Types of Surrogacy Available in Virginia

Can a parentage order be obtained for the following?

Surrogate compensation in Virginia is strictly limited to medical expenses and ancillary costs. However, a surrogate is allowed to request reimbursement for additional expenses.

Although traditional surrogacy isn’t prohibited in Virginia, many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights.

Gestational surrogacy

YES

Commercial surrogacy

NO

Traditional surrogacy

YES

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

💚 – Both Intended Parent(s) can establish parentage via a Consent and Report form.

💛 – Intended Parents will need to establish parentage via a post-birth Order of Parentage.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother, Parent-Parent, or Mother or Father.

The initial birth certificate must list the name of the surrogate and her husband. After the Report and Consent form is filed, the birth certificate will be amended with the name(s) of the Intended Parent(s). The timeline may vary depending on the Department of Vital Records, but can take up to 3-4 months.

Rights of Egg or Sperm Donor(s)

According to Virginia’s Assisted Conception Statute, donors of sperm or egg for assisted reproduction procedures have no parental rights over the donated gametes or a resulting child.

Surrogacy Steps in Virginia

Surrogacy Process in Virginia: Non-Court Approved Model

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorney and complete legal contract

Begin IVF cycle with surrogate

Delivery

Post-birth

Virginia requires parentage to be established by filing a Consent and Report form with the Department of Vital Records 3 days after the baby is born

Almost everyone pursuing surrogacy in Virginia uses the non-court approved model for establishing parentage, given the more streamlined process and lower cost.

Surrogacy Process in Virginia - Court-Approved Model

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorney and complete legal contract

Complete homestudy and file for court approval

Begin IVF cycle with surrogate

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

VARIES

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

Surrogacy contracts in Virginia are recognized and enforced by the state. As per Virginia law, contracts can’t address compensation.

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

Surrogates

  • Must have had at least one previous pregnancy and experienced at least one live birth
  • Must be assured that bearing another child doesn’t pose an unreasonable risk to her physical or mental health or to that of any resulting child, as supported by medical evidence
  • Must have received counseling concerning the effects of surrogacy by a qualified healthcare professional or social worker

Intended Parent(s)

  • Home study of Intended Parent(s) must be conducted and a report filed with the court*
  • Must meet the standards of fitness applicable for adoptive parents
  • If a heterosexual couple or single mother, the Intended Mother must be infertile, unable to bear a child, or unable to do so without unreasonable risk to the unborn child or to the physical or mental health of the intended mother or the child, a finding which shall be supported by medical evidence
  • Must have received counseling concerning the effects of surrogacy by a qualified healthcare professional or social worker.
*This requirement is only applicable for Intended Parent(s) following the court-approved model of establishing parentage.  Agencies and fertility clinics may have additional requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.

Birth Orders

Do courts issue pre-birth orders?

NO

Do courts issue post-birth orders?

NO

Are hearings required to obtain either pre- or post-birth orders?

NO

Virginia establishes parentage as a post-birth administrative process with the Department of Vital Records with a Report and Consent form. The Intended Parent(s), the surrogate (and her husband, if married), and their physician submit affidavits about their participation in the procedure 3 days after the baby is born. This allows the birth certificate to be amended to name the Intended Parent(s) as the legal parents of their child.

Bases of Venue

What are the bases of venue?

VARIES BASED ON PROCEEDINGS

Do rulings vary by venue?

YES

Can you file a motion to waive venue?

YES

Venue is most often where the gestational carrier or Intended Parent(s) live, but can also be the City of Richmond for parentage orders since the registrar’s office is located there.

International Issues

Although surrogacy is legal in Virginia, current statutes do limit unmarried Intended Parent(s) who won’t have a genetic connection to their child. International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country. 

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s):

NO

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

UNCERTAIN

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

Can they obtain a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Mark Eckman
311 Maple Avenue West
Suite E
Vienna VA 22180
(703) 242-8801
meckman@datzfoundation.org
hagarcenter.org

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019

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