Commentary

The Process for Using Surrogacy or Gestational Carrier Agreements to Grow Your Family In Virginia*

Families in Virginia of all shapes and sizes may use the surrogacy process to grow their family. Be it a heterosexual couple, same-sex couple, or unmarried person, Virginia Code § 20-156 et seq., provides a legal process for forming surrogacy relationships, and for formalizing the surrogate’s child as a member of the intended parents’ family.

There are two types of surrogacy under Virginia law: gestational carrier arrangements and traditional surrogacy. In a gestational carrier arrangement, the gestational carrier does not contribute her own egg to create an embryo, whereas in a traditional surrogacy arrangement, the surrogate uses her own egg and either the genetic material of an intended parent or a donor. In either circumstance, it is vitally important that there be a contract (typically called a “gestational carrier agreement”) defining the terms of the surrogacy arrangement between the parties, addressing all the pertinent details with specificity.

Virginia law provides two paths, one that is court approved and one that is not, for proceeding with the gestational carrier/surrogacy agreement. The process for obtaining a court-approved gestational carrier or surrogacy agreement in Virginia is typically onerous and expensive. Because of this, most gestational carrier or surrogacy arrangements are based upon a private contract that is not approved by the court. To be valid, these agreements must meet specific statutory requirements.

Once the agreement has been reached and executed by all parties, a legal clearance letter is provided to the fertility clinic, allowing the medical process to proceed. Under Virginia law, the gestational carrier is deemed the mother of the child. Once the baby is born, in order to place the intended parents’ names on the birth certificate, Virginia law provides an administrative birth certificate amendment process. This process does not require court approval or even a court hearing. Rather, the gestational carrier completes paperwork that is submitted to the State Registrar of Vital Records three days after the birth of the child. This paperwork includes a document relinquishing the carrier’s parental rights, along with the gestational carrier agreement and a statement from the physician who performed the assisted conception procedure. Thereafter, it takes at least 12 weeks to receive an amended birth certificate.

For same-sex married couples, the birth certificate amendment process is often followed by a second parent adoption so that the intended parent who is not genetically related to the child may adopt the child to cement the parent-child relationship.

If you would like to know more about gestational surrogacy, egg donation or sperm donation, or second-parent adoptions, please contact us. It is our honor to help families grow!

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice.