Whether for personal reasons, physical/biological reasons or both, surrogacy arrangements are not uncommon in the United States. In fact, more and more couples are conceiving children through surrogates every year. In Virginia, however, you may be surprised how the law describes the parentage of a child.
Most surrogacy cases involve: the (a) intended parents; (b) the surrogate mother; and (c) the husband of the surrogate mother, if she has one. And there are two (2) basic types of surrogate possibilities: traditional surrogacy and gestational surrogacy.
In a traditional surrogacy arrangement, the surrogate mother is inseminated with sperm from a male of the intended parents or from sperm of a donor. This means that the surrogate mother will also be the biological mother of the child.
In gestational surrogacy, an already fertilized embryo is implanted in the uterus of the surrogate mother. The embryo can be comprised of the DNA from the intended couple, donors, or a combination of both. This means that the surrogate mother will have no genetic relationship to the child.
According to Section 20-49.1(A) of the Virginia Code, even under gestational surrogacy arrangement, the child will legally be presumed the child of the birth mother; and, if the surrogate is married, the child of her husband, as well. So, even if an intended couple has an oral agreement with a gestational surrogate, she can change her mind later and keep the child.
This is why all surrogacy arrangements should be memorialized in a written contract. Sections 20-159 and 20-160 permits all parties involved in a surrogacy arrangement to enter into a binding contract outlining the rights and responsibilities of the intended parents, surrogate mother and her husband, if she has one. This agreement should, at a minimum, contain language identical or similar to that found in Section 20-156 of the Virginia Code. Your attorney can then have this agreement incorporate into a court order.
Whether you are a couple intending on using a surrogate or a woman intending on becoming one, you should consult with a knowledgeable family law attorney at the DiPietro Family Law Group to protect your rights and draft a valid surrogacy agreement.
Call us today for a consultation at (888) 530-4374 or contact us online.