This past month the Virginia State House passed HB1979. The bill makes certain updates to the state’s Assisted Conception Statute governing surrogacy. The changes are positive and include (1) the replacement of the old-school terms “husband” and “wife” with gender-neutral language; (2) the singularizing of “intended parents” to permit unmarried Virginians to become parents through surrogacy; and (3) new language permitting intended parents to use donated embryos (aka not be genetically related to the child) and still undergo surrogacy.
The bill passed by the House was identical to a bill passed by the State Senate a week earlier. Now we are just patiently awaiting the governor’s signature to make it law.
These are awesome steps forward. Congrats on the progress! However, there are some significant outstanding issues with ye Old Dominion. You see, the rest of the Virginia not-altogether-awesome surrogacy statute remains intact, leaving major hurdles for those turning to a Virginia surrogate to have a child.
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Good, But Also Still Not Good.
Although the changes are good ones and can likely help a few more hopeful Virginians achieve parenthood, many of the significant issues with the statute remain.
- No Pre-Birth Orders. One of the greatest fears intended parents have entering into the surrogacy process is that the surrogate will change her mind and want to keep the baby. Many states have a simple process that guarantees this won’t happen – the pre-birth parentage order. In such states, a court can grant an order prior to the birth of the child determining that the intended parents are the legal parents of the child and that the surrogate shall have no rights or obligations. Simple. Straightforward. Everything is taken care of prior to birth and parents can focus on parenting their newborn. Unfortunately, Virginia does not permit such an order (unless the parents engage in a lengthy trial-like process before commencing any medical procedures, which no one does). Instead, Virginia sticks to adoption-like concepts, not allowing the surrogate to sign away parental rights to the child (who is not genetically related to her and was never intended to be raised by her) until more than three days after the birth.
- If The Surrogate Refuses To Sign, The Child Is Legally Hers? So what happens if those three post-birth days pass and the surrogate refuses to sign away parental rights? The current statute provides that the intended parents will pay half the surrogate’s medical bills in such a situation. Fortunately, the new bill updates that language to add only if the surrogate “is genetically related” to the child, then the intended parents pay half her medical bills. But what happens if she isn’t genetically related to the child, and changes her mind about signing away parental rights? Sure, intended parents will no longer be obligated to pay half her medical bills, but does she get to keep their child? Fortunately, this situation has not happened. Yet.
- No Brokers (aka “Agencies”). The statute also outlaws matching organizations (surrogacy agencies), which makes it unlawful for any person to accept compensation for recruiting surrogates, or to accept compensation for arranging or introducing an intended parent to a surrogate.
- No Compensation. Compensation to a surrogate is still prohibited by the statute. However, “reasonable medical and ancillary costs” can be paid by intended parents and those include “reasonable costs for housing and other living expenses.” While these constraints have been interpreted to exclude reimbursement for lost wages, they have otherwise been interpreted liberally without too much concern.
The Map. From Yellow to… Still Yellow.
Creative Family Connections, a surrogacy-specialized law firm and matching service (out of Maryland — not Virginia, of course!), maintains and regularly updates an incredibly useful map for anyone wondering about the laws on surrogacy in any particular U.S. state. There is no U.S. federal law on surrogacy and each state has its own legal environment. With all of the constant changes, it’s tough to keep up! Thankfully, Creative Family Connections does it for us. In addition to being able to click on any given state for a comprehensive summary, the states are coded by color. Green = Surrogacy Friendly. Red = Surrogacy Unfriendly (probably a bad idea to find a surrogate in such a state). Yellow = Surrogacy Semi-Unfriendly (Beware!).
I checked in with Creative Family Connections’ founder attorney Diane Hinson (and a member of the Virginia Bar) as to whether the changes would be enough to push Virginia from the yellow category to the green category. She commented:
No, Virginia will stay yellow. We are very happy that single parents and parents using donated embryos are now included under Virginia’s Assisted Conception Act. And we love seeing gender-neutral language. But this surrogacy legislation still leaves in place all the underlying limitations of the Assisted Conception Act. The Act does not provide for pre-birth orders if parents do not go through a lengthy, time-consuming and onerous pre-birth approval trial. These trials can take up to 9 months, delaying start of the surrogacy process and adding to the already costly surrogacy journey. Even the unborn child must be represented by a guardian ad litum. For parties who are ready to build their families, this delay and extra cost is too much; they do not choose this route. Consequently, virtually no parent chooses this option under the Act. (In 18 years, I have never seen one of these!)
When parents have not gotten pre-approval by the court, the parentage rights of the intended parents are not secure unless and until the gestational surrogate signs the Surrogate Consent & Report Form — and she is not permitted to sign until 4 days after delivery. This peculiarity of the Virginia statute cries out to intended parents and others involved in the surrogacy process: Proceed with caution! And that is exactly what it means to be a yellow state.
While the changes are a good thing, don’t everyone get too excited. Don’t rush to Virginia just yet, surrogacy agencies! And intended parents, you may want to be extra cautious in choosing a surrogate in order to withstand the unnerving post-birth legal process.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].