Whether for personal or physical/biological reasons, surrogacy arrangements are not uncommon in the United States. In fact, more and more couples are conceiving children through surrogates every year. However, in Virginia, you may be surprised by how the law describes the parentage of a child.
Parties Involved in Surrogacy
Most surrogacy cases involve:
(a) the intended parents,
(b) the surrogate mother, and
(c) the husband of the surrogate mother, if she has one.
There are two basic types of surrogacy arrangements: traditional surrogacy and gestational surrogacy.
Traditional Surrogacy
In a traditional surrogacy arrangement, the surrogate mother is inseminated with sperm from a male of the intended parents or from a donor. This means the surrogate mother is also the biological mother of the child.
Gestational Surrogacy
In gestational surrogacy, an already fertilized embryo is implanted in the uterus of the surrogate mother. The embryo can be comprised of DNA from the intended couple, donors, or a combination of both. This means the surrogate mother has no genetic relationship to the child.
Legal Parentage in Virginia
According to Section 20-49.1(A) of the Virginia Code, even under a 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. Therefore, even if an intended couple has an oral agreement with a gestational surrogate, she can change her mind later and keep the child.
Importance of a Written Surrogacy Agreement
This is why all surrogacy arrangements should be formalized in a written contract. Sections 20-159 and 20-160 permit all parties involved in a surrogacy arrangement to enter into a binding contract that outlines the rights and responsibilities of the intended parents, surrogate mother, and her husband, if she has one. At a minimum, this agreement should contain language identical or similar to that found in Section 20-156 of the Virginia Code. Your attorney can then have this agreement incorporated into a court order.
Protecting Your Rights with Legal Assistance
Whether you are a couple intending to use a surrogate or a woman planning to become 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.
