What to Know About Surrogacy and Contracts in Virginia
Surrogacy is the use of a third-party reproductive method where a woman, known as the surrogate, will carry a pregnancy to term for another couple or person. Virginia allows for surrogacy, but it’s also a state that has more strict laws surrounding the process.
Parties to a Surrogacy Contract
Surrogacy in Virginia is covered under Code of Virginia §20-158 through §20-162, which sets forth the guidelines on the process and contract necessities. The parties typically involved in a surrogacy arrangement are:
- The intended parents, sometimes referred to as donor parents
- Surrogate, the person who is carrying the baby
- Surrogate’s husband (if married)
- Fertility clinic and licensed physician(s)
In Virginia, surrogacy is, in theory, limited to married couples (man and woman) and the woman must be able to prove she is unable to carry a pregnancy to term. If an unmarried couple wants to use a surrogate, they both cannot be listed on the birth certificate as the parents. The parent who is genetically related to the child will be the one listed as the parent, and the other party will need to look into formal adoption to be granted parental rights.
Virginia also requires that the surrogate has had at least one live birth. If she is married, her husband must be included as a party to the surrogacy contract.
Finding a surrogate can be a challenge, especially as Virginia doesn’t allow businesses or third-parties to find a match for the intended parents. Instead, they have to utilize friends and family, or go through a fertility clinic, or via an agency that is located in another state.
Surrogacy Contracts in Virginia
Prior to drafting a contract, the involved parties should sit down and have a thorough discussion as to how the process will go. One of the important things to discuss right up front is whether the potential surrogate has current health insurance, and the extent of the health care coverage as related to pregnancy. There are some policies that have specific exclusions regarding surrogacy.
Next, you need to discuss the costs associated with surrogacy. The intended parents are prohibited from compensating a surrogate for their time in Virginia. You can however cover reasonable expenses and related costs. One option is to provide an upfront payment that covers the embryo transfer, and then make payments on a set basis for the remainder of the pregnancy. One benefit to this rather than one entire upfront payment for expected costs is protection in case the surrogate does not successfully conceive.
It’s important to know that prior to commencement of the surrogacy, all parties have to undergo counseling, psychological screening, and even have tests for infectious diseases. This is all done prior to the contract signing and will include the surrogate’s husband as well if she is married.
Retaining a Virginia Surrogacy Attorney
Retaining a Virginia family law attorney who is experienced in surrogacy contracts is essential. There are a variety of topics that should be addressed, and some of these are things intended parents and the surrogate may not discuss on their own. For example, how many times will the surrogate be willing to undergo IVF? What about the number of fetuses she is willing to carry? Have you discussed what happens if she has a miscarriage?