STATE SURROGACY LAW:

West Virginia Surrogacy Laws

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Overview

Surrogacy is permitted in West Virginia, which allows the payment of “fees and expenses included in any agreement in which a woman agrees to become a surrogate mother” (W. Va. Code § 61-2-14h(e)(3). However, this is part of the criminal code in West Virginia and therefore not especially applicable to surrogacy practice.

More relevant is a 2015 Department of Health and Human Resources instructional memorandum outlining the procedures for filing birth certificates in gestational carrier situations.

No statute or case law prohibits the practice of traditional surrogacy in West Virginia.

Types of Surrogacy Available in West Virginia

Can a parentage order be granted for the following?

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

Gestational surrogacy

YES

Commercial surrogacy

YES

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 be named on the parentage order.

– Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

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

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

Rights of Egg or Sperm Donor(s)

There are no statutes or case law in West Virginia that address the rights of an egg, sperm, or embryo donor over the donated gametes or a resulting child.

Surrogacy Steps in West Virginia

Surrogacy Process in West Virginia

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations at the fertility center

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

Proceedings begin after the first trimester.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

2-4 weeks, although the process can be expedited.

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

Although no statutes directly address the matter, surrogacy contracts in West Virginia have been historically recognized and enforced by the state.

Independent Counsel

Independent counsel is recommended, but not required, for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

West Virginia has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own 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?

YES

Do courts issue post-birth orders?

YES

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

VARIES

There are no statutory requirements for parentage orders in West Virginia. However, it’s standard practice to file a parentage motion. and there haven’t been issues obtaining them.

Although judges typically don’t require a hearing in surrogacy cases, it’s at their discretion, as is the need for a hearing.

Bases of Venue

What are the bases of venue?

Kanawha County (where the Bureau of Vital Statistics is located) or the county of the child’s birthplace.

Do rulings vary by venue?

Can you file a motion to waive venue?

International Issues

Because of the lack of legal restrictions and surrogacy-friendly courts, international Intended Parent(s) may find using surrogacy to build their family in West Virginia a relatively straightforward process. 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):

There is no residency requirement for Intended Parent(s) in obtaining a parentage order as long as the surrogate lives in West Virginia or the child is born there. However, any post-birth adoption process does require West Virginia residency.

Birth Certificates

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

YES

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

YES

Can they receive 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

Monika Jaensson
Dinsmore
707 Virginia Street E. Suite 1300
Charleston, WV 25301
(304) 357-9924
monika.jaensson@dinsmore.com
www.dinsmore.com

David Barnette
Jackson Kelly
500 Lee Street East Suite 1600
Charleston, WV 25301
(304) 340-1327
dbarnette@jacksonkelly.com
www.jacksonkelly.com

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