Did you know that in surrogacy arrangements the birth mother of a child, not the donor mother, is legally the child’s mother in Virginia? Pursuant to Virginia Code Section 20-158, the parentage of a child conceived through assisted conception may not be what you thought.
Surrogacy cases usually involve the following parties:
- Intended parents (who may also be known as the “donor parents”),
- Surrogate mother,
- The husband of the surrogate mother (if married), and
- Licensed physician and/or fertility clinic.
There are two types of surrogacy arrangements. In traditional surrogacy, a surrogate mother is inseminated with sperm from a male in the intended couple, or from a donor. In gestational surrogacy, the surrogate mother is implanted with an embryo, which can either come from the intended parents or from a donor. The significant difference between these two arrangements is that in gestational surrogacy the surrogate mother has no genetic relationship to the child.
However, even in gestational surrogacy cases, upon birth the child is legally presumed to be the child of the surrogate mother in Virginia. See Virginia Code Section 20-49.1(A). Further, if the surrogate mother is married, the child is legally presumed to be the child of the surrogate mother’s husband.
All of which means that, if the parties listed above simply verbally agree to have a surrogate mother carry the unborn child, the intended parents run the risk of having the surrogate change their mind and decide to keep the child.
So what can be done to resolve this? Virginia Code Section 20-159 allows for surrogacy contracts that outline the responsibilities of each party involved. Further, Virginia Code Section 20-160 allows for such contracts to be approved by Virginia circuit courts.
A surrogacy contract is a written agreement between the intended parents, the surrogate, and the surrogate’s husband (if applicable). This contract should state that the surrogate agrees to be impregnated through the use of assisted conception, to carry any resulting fetus to birth, and to relinquish to the intended parents custody and any other parental rights to any child that is born of this agreement. See Virginia Code Section 20-156.
If you are a couple who intends to use a surrogate, or a woman who is considering becoming a surrogate mother, it is important that you speak with an experienced attorney in order to protect your rights throughout the process. If you are a resident of Northern Virginia, the experienced family law attorneys at Livesay & Myers can help. Contact us to schedule a consult today.
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