Surrogacy in Virginia

Gestational Surrogacy in Virginia

Many are surprised to learn that surrogacy is authorized by Virginia statute § 20-156, et al., Virginia has a marital requirement for couples pursuing gestational surrogacy, but there need not be any genetic connection so long as ownership of the embryo can be proven.

Understanding Surrogacy Laws in Virginia

Virginia’s “Status of Children of Assisted Conception” is unique because although it contemplates court approval process, this can only be done prior to embryo transfer and is not a pre-birth parentage order. It is instead a lengthy court process more akin to an adoption proceeding–home studies for all parties, the appointment of a guardian ad litem for the unborn child, and a full trial-like court hearing. Therefore, almost all intended parents bypass this and opt to establish their parental rights post-birth either through the administrative process contemplated in the statute or through an order of parentage from the court.

Legal Parentage

Virginia is an exclusively post-birth state with two avenues for securing Intended Parents’ parental rights: administrative process and court process. The administrative process is detailed in the statute to secure parental rights and is a streamlined process for those intended parents that meet the statutory requirements. For those intended parents who need a court order to secure their rights because they either don’t meet the statutory requirements or for alternative purposes, an order of parentage is possible through the court system. One other unique note for Virginia, the gestational carrier cannot sign any of the documents for parentage, whether that be the administrative process or the court process, until 72 hours after the child is born.

Backing up a step, the legal parentage process is the critical step where parentage is determined. Depending on where your child is born, the birth parentage orders will be completed either pre- or post-birth. Every state, whether pre-birth, post-birth, or some combination of the two, has its own unique process and requirements. Working with an experienced Assisted Reproductive Technology lawyer and reputable agency is critical to the success of a surrogacy journey. One of the many benefits of working with an established agency like ConceiveAbilities is the legal oversight, education, and support provided to both intended parents and gestational surrogates.

Pre-Birth Orders

The pre-birth process means that the relevant state law provides an avenue for the parties to present an order to a judge for entry prior to the child being born that establishes the intended parent(s) as the legal parents of the child. It will also likely direct the hospital to release the child to the intended parents after discharge and order the Virginia Office of Vital Records to name the intended parents on the child’s birth certificate.

Post-Birth Processes  

The post-birth process is overall procedurally the same as the pre-birth, but it occurs after the child is born. Often this is because the relevant state law contemplates the existence of a live child before anything can be filed or entered. But the ultimate result is the same – a birth certificate with the intended parents’ names and secure legal parentage of the child in favor of the intended parents. Post-birth court orders may be necessary if the pre-birth order process isn’t followed, ensuring legal parentage.

Common Questions About Virginia Surrogacy Law

Do You Need a Medical Need for Surrogacy in Virginia?

Although there is no specific law on this, It is best practice to only pursue surrogacy in Virginia if you have a medical need. This means surrogacy is only permitted if there is a medical reason a person cannot carry their own child. Some examples of medical needs include unexplained infertility, lack of a uterus or vagina, scarring on the uterus, and a history of complicated pregnancies or miscarriage(s). Existing medical conditions like heart disease, kidney disease, diabetes and pregnancy conditions such as preeclampsia and gestational diabetes that could impact a woman’s ability to carry a child to term or put her life at risk would also qualify as a medical need.

Are There Any Requirements or Specifications for Intended Parent(s) as It Relates to Marital Status?

Virginia permits married couples and single individuals to pursue surrogacy.

Do Intended Parent(s) need a genetic connection to the embryo?

In Virginia, intended parents do not need a genetic connection to the embryo so long as they can prove ownership of the embryo.

Can International Intended Parent(s) Pursue Surrogacy in Virginia?

It is not advised that international parents pursue surrogacy in Virginia because of delay in getting the birth certificate. However it is possible for international parents to do so. Learn more about becoming a parent with international family building.

Can LGBTQIA+ Intended Parents safely pursue surrogacy in your state?

Yes, Virginia allows surrogacy for all individuals including the gay and LGBTQ+ community, regardless of sexual orientation. Learn more about surrogacy and the LGBTQ+ Community.

Can I Use My Own Surrogate? Is Altruistic Surrogacy Permitted?

Yes, altruistic surrogacy is permitted in Virginia. Even if you have a surrogate, you may still choose to partner with a surrogacy agency to navigate your journey.

Are there any residency requirements for either Intended Parent(s) or surrogates in Virginia?

Generally no. Intended parents do not need to be Virginia residents to carry out a surrogacy journey in Virginia. Similarly, Gestational Carriers are not required to reside in Virginia. However, the baby needs to be born in Virginia.

Are there any written laws (statute or case law) relating to the rights of gestational carriers?

Virginia’s Status of Children of Assisted Conception Chapter 9, Section 20-162 and Chapter 9, Section 20-163 outline the requirements and rights of a surrogate. Learn more about surrogate rights.