Gestational Surrogacy Regulations in West Virginia

Overview

Gestational Surrogacy is permitted in West Virginia by W.VA Code §61-2-14h(e)(3), which
permits fees and expenses in any agreement in which a woman agrees to become a surrogate
mother (expressly prohibits the criminal penalties on the sale of child).

Intended Parents

Age requirement:
18 years of age or older
Marriage requirement:
No
Married heterosexual couple:
Yes
Married same-sex couple:
Yes
Unmarried heterosexual couple:
Yes*
Unmarried same-sex couple:
Yes*
Resident status:
No*
Independent legal counsel:
Yes

Gestational Surrogates

Age requirement:
18 years of age or older
Marriage requirement:
No
If married/partnered:
husband’s/partner’s sperm cannot be used
Surrogate status:
Gestational Surrogacy only
Resident status:
No*
Use of own embryos:
No
Independent legal counsel:
Yes
*as long as the child is born in West Virginia there is basis for venue in West Virginia* ´

Embryos

Intended Parents own sperm:
Yes
Intended Parents own eggs:
Yes
Intended Parents using sperm donor:
Yes* (unclear if unmarried heterosexual couple; same-sex couple must be married)
Surrogate status:
Gestational Surrogacy only
Intended Parents using egg donor:
Yes* (unclear if unmarried heterosexual couple; same-sex couple must be married)
Intended Parents using both egg and sperm donor:
Yes* (if married for same-sex couple)

Birth of Child

Birth in West Virginia:
Yes
Birth outside of West Virginia:
No

Pre-Birth Orders will be issued in more instances, even if neither Intended Parent is
genetically related to the child, with results varying by county and judge.

Parentage

Pre-Birth Orders:
Yes
Hearing to obtain Order:
Yes
Post-Birth Orders:
Yes

General Information

Will West Virginia Vital Records honor a Pre-Birth Order from another state:
Yes*
What is the typical time frame to obtain a birth certificate after delivery:
10 days
How are same-sex parents named on the final birth certificate:
Parent and Parent
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier:
Yes
Can an international same-sex male couple subsequently obtain a birth certificate naming only the biological father or both fathers with no mention of the Gestational Carrier:
Yes

Second Parent and Stepparent Adoptions for West Virginia Residents:

*This situation typically arises if the child is born outside of West Virginia. The parents then return to West Virginia to obtain a second parent adoption or stepparent adoption in West Virginia. Please consult with your attorney on this matter if this issue is to arise*

Traditional Surrogacy in West Virginia?

*Traditional Surrogacy is generally permitted because no statute or published case law prohibits it. Please consult with a local attorney to determine if you can move forward with traditional surrogacy*
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