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*
* Because there is no case law it is unclear whether these circumstances would be accepted by the court. Please consult with a local attorney.
Mental health counseling:
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
Mental health counseling:
Yes
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)
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* (Because there is no case law it is unclear whether these circumstances would be accepted by the court. Please consult with a local attorney)
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 (Because there is no case law it is unclear whether these circumstances would be accepted by the court. Please consult with a local attorney)

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.
Legal content provided by:

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.