Virginia Code 20-160: Petition and hearing for court approval of surrogacy contract; requirements; orders
A. Prior to the performance of assisted conception, the intended parent, the surrogate, and her spouse, if any, shall join in a petition to the circuit court of the county or city in which at least one of the parties resides. The surrogacy contract shall be signed by all the parties and acknowledged before an officer or other person authorized by law to take acknowledgments.
Terms Used In Virginia Code 20-160
- Assisted conception: means a pregnancy resulting from any intervening medical technology, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. See Virginia Code 20-156
- City: means an independent incorporated community which became a city as provided by law before noon on July 1, 1971, or which has within defined boundaries a population of 5,000 or more and which has become a city as provided by law. See Virginia Code 1-208
- Compensation: means payment of any valuable consideration for services in excess of reasonable medical and ancillary costs. See Virginia Code 20-156
- Contract: A legal written agreement that becomes binding when signed.
- Embryo: means the organism resulting from the union of a sperm and an ovum from first cell division until approximately the end of the second month of gestation. See Virginia Code 20-156
- Escrow: Money given to a third party to be held for payment until certain conditions are met.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Genetic parent: means an individual who contributes a gamete resulting in a conception. See Virginia Code 20-156
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Infertile: means the inability to conceive after one year of unprotected sexual intercourse. See Virginia Code 20-156
- Intended parent: means a married couple or unmarried individual who enters into an agreement with a surrogate under the terms of which such parent will be the parent of any child born to the surrogate through assisted conception regardless of the genetic relationships between the intended parent, the surrogate, and the child. See Virginia Code 20-156
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Legal or contractual custody: means having authority granted by law, contract, or court order to make decisions concerning the use of an embryo. See Virginia Code 20-156
- Person: includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof. See Virginia Code 1-230
- Reasonable medical and ancillary costs: means the costs of the performance of assisted conception, the costs of prenatal maternal health care, the costs of maternal and child health care for a reasonable postpartum period, the reasonable costs for medications and maternity clothes, and any additional and reasonable costs for housing and other living expenses attributable to the pregnancy. See Virginia Code 20-156
- State: when applied to a part of the United States, includes any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, and the United States Virgin Islands. See Virginia Code 1-245
- Surrogacy contract: means an agreement between the intended parent, a surrogate, and her spouse, if any, in which the surrogate agrees to be impregnated through the use of assisted conception, to carry any resulting fetus, and to relinquish to the intended parent the custody of and parental rights to any resulting child. See Virginia Code 20-156
- Surrogate: means any adult woman who agrees to bear a child carried for the intended parent. See Virginia Code 20-156
A copy of the contract shall be attached to the petition. The court shall appoint a guardian ad litem to represent the interests of any resulting child and shall appoint counsel to represent the surrogate. The court shall order a home study by a local department of social services or welfare or a licensed child-placing agency, to be completed prior to the hearing on the petition.
All hearings and proceedings conducted under this section shall be held in camera, and all court records shall be confidential and subject to inspection only under the standards applicable to adoptions as provided in § 63.2-1245. The court conducting the proceedings shall have exclusive and continuing jurisdiction of all matters arising under the surrogacy contract until all provisions of the contract are fulfilled.
B. The court shall hold a hearing on the petition. The court shall enter an order approving the surrogacy contract and authorizing the performance of assisted conception for a period of twelve months after the date of the order, and may discharge the guardian ad litem and attorney for the surrogate upon finding that:
1. The court has jurisdiction in accordance with § 20-157;
2. A local department of social services or welfare or a licensed child-placing agency has conducted a home study of the intended parents, the surrogate, and her spouse, if any, and has filed a report of this home study with the court;
3. The intended parent, the surrogate, and her spouse, if any, meet the standards of fitness applicable to adoptive parents;
4. All the parties have voluntarily entered into the surrogacy contract and understand its terms and the nature, meaning, and effect of the proceeding and understand that any agreement between them for payment of compensation is void and unenforceable;
5. The agreement contains adequate provisions to guarantee the payment of reasonable medical and ancillary costs either in the form of insurance, cash, escrow, bonds, or other arrangements satisfactory to the parties, including allocation of responsibility for such costs in the event of termination of the pregnancy, termination of the contract pursuant to § 20-161, or breach of the contract by any party;
6. The surrogate has had at least one pregnancy, and has experienced at least one live birth, and bearing another child does not pose an unreasonable risk to her physical or mental health or to that of any resulting child. This finding shall be supported by medical evidence;
7. Prior to signing the surrogacy contract, the intended parent, the surrogate, and her spouse, if any, have submitted to physical examinations and psychological evaluations by practitioners licensed to perform such services pursuant to Title 54.1, and the court and all parties have been given access to the records of the physical examinations and psychological evaluations;
8. The intended parent is infertile, is unable to bear a child, or is unable to do so without unreasonable risk to the unborn child or to the physical or mental health of the intended parent or the child. This finding shall be supported by medical evidence;
9. At least one intended parent is expected to be the genetic parent of any child resulting from the agreement or such intended parent has the legal or contractual custody of the embryo at issue;
10. The spouse of the surrogate, if any, is a party to the surrogacy agreement;
11. All parties have received counseling concerning the effects of the surrogacy by a qualified health care professional or social worker, and a report containing conclusions about the capacity of the parties to enter into and fulfill the agreement has been filed with the court; and
12. The agreement would not be substantially detrimental to the interests of any of the affected persons.
C. Unless otherwise provided in the surrogacy contract, all court costs, counsel fees, and other costs and expenses associated with the hearing, including the costs of the home study, shall be assessed against the intended parent.
D. Within seven days of the birth of any resulting child, the intended parent shall file a written notice with the court that the child was born to the surrogate within 300 days after the last performance of assisted conception. Upon the filing of this notice and a finding that one intended parent is the genetic parent of the resulting child as substantiated by medical evidence, or upon proof of the legal or contractual custody of the embryo by such intended parent, the court shall enter an order directing the State Registrar of Vital Records to issue a new birth certificate naming the intended parent as the parent of the child pursuant to § 32.1-261.
If evidence cannot be produced that at least one intended parent is the genetic parent of the resulting child, or proof of the legal or contractual custody of the embryo by such intended parent cannot be produced, the court shall not enter an order directing the issuance of a new birth certificate naming the intended parent as the parent of the child, and the surrogate and her spouse, if any, shall be the parents of the child. The intended parent may obtain parental rights only through adoption as provided in Chapter 12 of Title 63.2.