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Understanding Surrogacy Under Virginia Law

Pregnant

Surrogacy is the process through which parents conceive using a third-party’s help. In traditional surrogacy, the surrogate is inseminated with the intended father’s or a donor’s sperm. Her own egg is used. During gestational surrogacy, a surrogate is implanted with an embryo through IVF, which may be created through both intended parents’ gametes, a donor embryo, or a combination. Virginia has extensive laws on the type of surrogacy arrangements that are allowed and will be upheld in court under the Assisted Conception Statute. If you and your spouse are considering surrogacy, you should speak with an experienced Leesburg family law attorney before starting the process to ensure you follow the right steps and have a valid surrogacy contract.

Who Can Use Surrogacy?

Under Virginia law, the intended parents of a child born through surrogacy must be a married couple. Unmarried couples can use surrogacy, but they cannot both be listed as the parents on the birth certificate through filing a Surrogate Consent & Report Form. Only the parent who is genetically related to the child through surrogacy will be part of the surrogacy agreement and listed as a parent. The other mother or father may need to legally adopt the child to obtain parental rights.

Intended parents can have a pre-approved or non pre-approved surrogacy process. Parents may choose to have the surrogacy contract approved by the courts prior to the IVF taking place. However, because of the length and cost of this process, most parents choose to go forward with surrogacy without court pre-approval.

Finding a Surrogate

Intended parents cannot pay a third-party individual or business to match them with  a surrogate. Instead, they must match with this person through on another way. This may mean through friends, family, a religious organization, online, a fertility clinic or an out-of-state agency. A surrogate must have had at least one live birth, and if she is married, her spouse must also be party to the surrogacy agreement.

Forming a Surrogacy Contract

Forming a surrogacy contract comes after thoroughly discussing how the process will work. First, intended parents should determine the surrogate’s health insurance situation. A surrogate needs to have good insurance that does not specifically exclude surrogacy. Second, intended parents can determine how a surrogate will be paid. Under Virginia law, parents cannot compensate the surrogate for her time. They can only pay for reasonable medical and ancillary costs. The intended parents may pay a certain amount up front, at the time of the embryo transfer, and then monthly. It is smart to structure payments in a way that ensure a surrogate is paid some amount even if she does not conceive, but also in a way that intended parents have not paid the total amount prior to conception.

Other aspects that need to be discussed and documented in the contract are:

  • How many embryos is the surrogate willing to have transferred at one time?
  • How many fetuses is the surrogate willing to carry at one time?
  • Will the surrogate submit to selective reduction?
  • What will be the process if the surrogate miscarries?
  • How many times is the surrogate willing to try through IVF?

Necessary Testing

All parties involved in the surrogacy contract must undergo psychological screening and counseling, and be tested for infectious diseases. The screening and counseling are for all parties to the contract, which can include the surrogate’s husband. Screening for infectious diseases is required by the U.S. Food and Drug Administration. The surrogate will also need to undergo pre-IVF testing.

Obtaining the Correct Birth Certificate

Intended parents must go through a legal process to ensure their names are put on the birth certificate. If the parents did not use a pre-approved process, all parties should wait 3 days following the birth and then file a Surrogate Consent & Report Form. Virginia Vital Records will then create a new birth certificate with the intended parent’s names on it.

Contact Whitbeck Cisneros McElroy PC For Help

Couples who are trying to grow their families and who are considering surrogacy should contact the experienced surrogacy attorneys of Whitbeck Cisneros McElroy PC at 703-997-4982. Our Virginia lawyers are prepared to help you today.

Resource:

law.lis.virginia.gov/vacode/title20/chapter9/

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Whitbeck Cisneros McElroy PC is located in Leesburg, VA and serves clients in and around Ashburn, Paeonian Springs, Hamilton, Sterling, Lincoln, Waterford, Leesburg, Purcellville, Lovettsville, Middleburg, Philomont, Round Hill, Arcola, Aldie, Dulles, Bluemont, Herndon, Haymarket, Reston, Great Falls, Clarke County, Fairfax County, Fairfax City County, Fauquier County, Loudoun County, Prince William County, Frederick County, Warren County, Winchester County, Arlington County.

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