Gestational Surrogacy Regulations in Virginia

Overview

Gestational Surrogacy is permitted by Virginia’s Assisted Conception Statute, entitled “Status of Children of Assisted Conception”. Intended Parents must be a married couple or an unmarried individual. The Gestational Carrier’s compensation is limited to reasonable medical and ancillary expenses.

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:
No
*an unmarried heterosexual couple can obtain an Order of Parentage Post-Birth and then can both be named on the birth certificate if using their own egg and own sperm.
Mental health counseling:
Yes
Resident status:
No*
Home study:
Yes
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 and Traditional Surrogacy
Resident status:
No*
Previous pregnancies:
at least one
Use of own embryos:
No
Independent legal counsel:
Yes
*as long as the IP(s) or GC are residents of Virginia, there is basis for venue in Virginia.

Embryos

Intended Parents own sperm:
Yes
Intended Parents own eggs:
Yes
Intended Parents using sperm donor:
Yes
Intended Parents using egg donor:
Yes
Intended Parents using both egg and sperm donor:
No

Birth of Child

Birth in Virginia:
Yes
Birth outside of Virginia:
Yes

Instead of filing for a Pre-Birth Order, Intended Parents can only establish their legal parental rights through either the court-approved model or the non-court approved model. The court approved model requires the court’s pre-approval prior to the surrogate’s IVF cycle, a home study, and a court hearing. The non-court model requires the Intended Parents to file a Surrogate Consent and Report form with the Birth Registrar within three (3) days following the child’s birth.

Parentage

Pre-Birth Orders:
No
Hearing to obtain Order:
Yes
Post-Birth Orders:
Yes

General Information

Will Virginia Vital Records honor a Pre-Birth Order from another state:
Yes* (only if a Virginia court first domesticates the out-of-state order)
What is the typical time frame to obtain a birth certificate after delivery:
8-10 weeks
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* (Via an Order of Parentage that declares the carrier or surrogate not a parent)
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* (if they are married and obtain an Order of Parentage in conjunction with a stepparent adoption)

Second Parent and Stepparent Adoptions for Virginia Residents:

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

Traditional Surrogacy in Virginia?

Traditional Surrogacy is permitted in Virginia under Virginia’s Status of Children of Assisted Conception Statute, so long as all the statutory restrictions are met. Please consult with a local attorney to determine if you can move forward with traditional surrogacy.
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Disclaimer - The information provided on these pages does not, and is not intended to, constitute legal advice; all content is for general informational purposes only and may not constitute the most up-to-date legal information, either. Please consult with an ART Lawyer for legal advice specific to your case.