Assisted Reproductive Technology Options for Same-Sex Parents in Virginia
(1) Same-Sex Male Couples.
Surrogacy arrangements in Virginia involving same-sex male couples can be very tricky and risky. It is a new and evolving area of the law. While the surrogacy statute in Virginia only applies to married intended parents, there is no case law or statute that prohibits gestational carrier agreements being entered in Virginia by single men. This means that, for same-sex male couples, one or both can contract with the carrier as a single parent. If the Intended Father’s sperm is used, then his name easily can be placed on the birth certificate if the carrier is unmarried. If the carrier is married, then an Order of Parentage generally will need to be obtained, after DNA testing establishes that the Intended Father is the genetic father and that the carrier’s husband is not the genetic father.
The problem is then getting the carrier off the birth certificate and the other partner on the birth certificate. In Virginia, at present, if the same-sex couple lives in Virginia, while there may be a way to get the carrier off the birth certificate via a single parent adoption (if Intended Father is not named on the birth certificate) or an Order of Non-Parentage (not yet tested), it is not currently possible to get the other partner on the birth certificate. The best outcome is that the same-sex couple has a Joint Custody and Co-Guardianship Order entered (this too is not guaranteed but a number of courts have entered such orders to date). If the same-sex couple subsequently move to another state that permits second parent adoptions, then they can do a second parent adoption and get the other partner on the birth certificate and the carrier off the birth certificate (note that the Virginia Supreme Court has opined that adoption orders for same-sex couples from other states must be given full faith and credit by the Virginia Department of Vital Records).
If the same-sex male couple lives in a state or jurisdiction like Maryland or Washington, D.C., but the carrier is in Virginia, then after the genetic dad is listed on the birth certificate (or, if the carrier is married and an Order of Parentage is entered in Virginia as to the genetic dad) then the couple can do a second-parent adoption in their home state. This will remove the carrier from the birth certificate and place the other partner on the birth certificate.
(2) Same-Sex Female Couples.
Where one half of the couple uses her own egg and donor sperm, provided that a proper sperm donor agreement has been executed, she will be the sole genetic and legal parent of the child. The best outcome for the other partner then is that the same-sex couple has a Joint Custody and Co-Guardianship Order entered (this too is not guaranteed but a number of courts have entered such orders to date). If the same-sex couple subsequently moves to another state that permits second parent adoptions, then they can do a second parent adoption and get the other partner on the birth certificate (note that the Virginia Supreme Court has opined that adoption orders for same-sex couples from other states must be given full faith and credit by the Virginia Department of Vital Records).
Where one half of the couple contributes her egg to the other partner to carry with donor sperm, the legal outcome currently is unknown. The partner who carries the child will be the presumed and legal mother and, even though DNA testing may show that the partner who contributed the egg is the genetic parent, it is completely untested as to whether a court would enter an Order ordering that she is a second legal parent and should be listed on the birth certificate as a second parent. Moreover, she needs to be very clear in any agreement that she does not intend to be a donor (which arguably would preclude her from having any parental rights) but that she intends via her contribution to be a parent. This is truly an untested area of the law in Virginia with no guaranteed or reliable outcome. Of course, if an Order could not be obtained listing both moms as the legal parents, the couple still could attempt to have a Joint Custody and Co-Guardianship Order entered (although, as noted above, this is not guaranteed in every jurisdiction and it would not give the partner who contributed her egg standing as a legal parent).
Because usually one of the two same-sex female partners is capable of carrying – it would be a very rare situation whereby they would need to use a third party carrier.
