Reproduction | The Legal Process

The Adoption and Surrogacy Law Center

CONTRACTING FOR A SURROGATE/ CARRIER

Generally, for married heterosexual Intended Parents in Virginia there are two common steps to the surrogacy or gestational carrier process covered under Virginia Code 20-156 et seq. entitled “Status of Children of Assisted Conception” (single and same-sex options fall outside of the statute and are covered on a separate web page). The first step is contract drafting. The second typical step is amendment of the birth certificate. The other less used option under Virginia’s Statute is the Pre-Birth Approved Contract Order process discussed below. The Pre-Birth Approved Contract Order process (although more cumbersome and expensive) provides some added limited protection for the Intended Parents. However, note that the Virginia Pre-Birth Approved Contract Order process is actually a pre-approved contract process which must be done prior to any attempt at achieving pregnancy. Finally, where a Pre-Birth Order is obtained from another state it can be domesticated and given full faith and credit by a Virginia Court.

A. THE CONTRACT PHASE (PHASE ONE).

At the Adoption & Surrogacy Law Center, whether we represent the intended parent(s) or the carrier-surrogate, we currently charge a flat fee of $2,000 for drafting and negotiation of the contract and review of the carrier-surrogate’s health insurance policy (we do give a discount in “altruistic” situations where the carrier is a family member or best friend and the reimbursement payment amounts are minimal). This fee amount does not include the cost of separate representation during the contract phase for the other party (usually $1000 to $1,500). Sometimes a waiver of the sperm quarantine also may be required and this is included. Assuming all screening and pre-requisites have been addressed, the basic steps are:

(1) We obtain general background information and then send out our retainer letter agreement and request a retainer in the amount of $2,000.

(2) We send out questionnaires for the intended parent(s) and the surrogate/carrier to complete. These will assist us in drafting the contract and directing the parties towards reaching agreement on the various terms of the contract.

(3) The parties furnish us with any medical provider information, especially any agreements you have entered into, or anticipate entering into, with the medical provider(s) that will be performing the assisted reproductive technology procedure.

(4) The surrogate/carrier furnishes us with a complete copy of her health insurance policy to review (we need the entire plan or policy – not just a summary plan description).

(5) After receiving the completed questionnaires and medical provider information and reviewing the health insurance coverage (assuming we have the complete policy), we draft the contract for our client’s review and approval first. Only then is it sent for the other party’s review along with their attorney. We also will provide names of recommended attorneys for the other party. Note that the intended parents generally pay for the cost of the surrogate/carrier’s attorney as part of the overall contractual arrangement and that this is a permissible payment under Virginia law. In nearly every situation all parties are represented – there are very few and rare situations where a party might go unrepresented and it is not recommended.

(6) After receiving feedback and working out any terms that are subject to dispute between the parties, we finalize the contract and finish reviewing and/or integrating any medical provider agreements as may be necessary.

Different fee amounts are charged if another attorney is drafting the contract and/or in situations where the contract needs to be revised or amended or rewritten to comport with Virginia law.

B. THE HOSPITAL AND BIRTH CERTIFICATE AMENDMENT PHASE (PHASE TWO) FOR MARRIED INTENDED PARENTS WHERE THE CHILD IS BORN IN VIRGINIA.

We currently charge a flat fee of $1500 plus $75 costs (total of $1575) for one child for the hospital and birth certificate amendment process. We offer discounted rates for multiple children. Note that, although it is called a “birth certificate amendment process,” per the agreement, no birth certificate is actually ever issued with the carrier’s name on it unless expressly requested. Instead, only an application for the birth certificate is filled out at birth listing the carrier or surrogate – but the only birth certificate then actually issued is the one with the names of the intended parent(s) on it. As part of the flat fee, we also provide assistance with the hospital process and procedures prior to the birth as well as at the time of birth. Note that we actually start this phase two process about three to five months before the anticipated birth.

(1) Again we send a retainer letter agreement and request a retainer.

(2) Once retained, we provide the necessary hospital forms and also send out instructions regarding the hospital and birth certificate amendment process. After receiving the necessary information, we complete the pertinent amendment and consent forms to be submitted to our state department of vital statistics after the birth.

(3) We obtain the necessary doctor’s affidavit and determine if DNA testing will be necessary (this generally is subject to the doctor’s discretion).

(4) We circulate the amendment and consent forms for signature (note that in Virginia, the surrogate/carrier cannot sign until the child is 3 days old although the intended parents may sign immediately after birth).

(5) The parties must have an agreement in place that comports with Virginia law.

(5) We submit the requisite executed forms, along with a copy of the surrogacy-gestational carrier contract and the doctor’s affidavit, immediately upon receipt.

(6) A new birth certificate is issued within eight to sixteen weeks of submission. There are certain ways to expedite the process if necessary (for example, if the birth certificate is needed to obtain a passport or to secure health insurance). The old application for birth certificate is placed under seal. Provided that no one ever requests that a birth certificate based on the original application be issued, then the only birth certificate issued is the one listing the intended parents.

C. THE PRE-BIRTH APPROVED CONTRACT ORDER (ALTERNATE PROCESS FOR PHASE TWO) FOR MARRIED HETEROSEXUAL INTENDED PARENTS.

Note that there is a process in Virginia for obtaining a pre-birth Approved Contract Order that orders approval of the contract and that the intended parents are named on the birth certificate. However, the process is rarely used as home studies on both the intended parents and the surrogate-carrier and the contract must be in place BEFORE the court hearing AND the contract needs to be court approved before any medical procedure takes place that will result in a pregnancy. Thus it costs on average another $4000 to $5000 in legal fees (in addition to the home study costs which runs about $2000 to $3,000) before the parties can even start to attempt a pregnancy. Thus, this route is more expensive and cumbersome BUT somewhat better protects the Intended Parents, and is therefore recommended especially in situations involving a true surrogate (who is carrying a child formed with her own egg).

D. THE BIRTH CERTIFICATE AMENDMENT PROCESS (PHASE TWO) FOR MARRIED INTENDED COUPLES WHERE THE BIRTH OCCURS OUTSIDE OF VIRGINIA.

For situations where the child is born outside of Virginia, then we must use a different process for amending the birth certificate.  The law of the other state may be used or Virginia’s Parentage Act may be used by Virginia residents. In such instances, the parties must have DNA testing done in order to establish that at least one intended parent is the genetic parent of the child. Then we utilize Virginia’s parentage act to file a petition with the court and have an Order of Parentage entered. The Order of Parentage is then used to amend the original birth record in the other state. Where necessary, if one parent is a non-genetic parent then a step-parent adoption can be done in conjunction with the Order of Parentage.  

E. DOMESTICATION OF A PRE-BIRTH ORDER FROM ANOTHER STATE.

Where a Pre-Birth Order is obtained from another state but the child is born in Virginia, then we can request a Virginia Court to domesticate and give full faith and credit to the out of state Pre-Birth Order.

See also: Recommended Adult Books for Parents Who Conceive Children Through Assisted Reproductive Technologies and Recommended Children’s Books for Children of Assisted Reproductive Technologies

RICHMOND: 804-285-6253
CONTACT US

The Legal Process


CONTRACTING FOR A SURROGATE/ CARRIER

Generally, for married heterosexual Intended Parents in Virginia there are two common steps to the surrogacy or gestational carrier process covered under Virginia Code 20-156 et seq. entitled “Status of Children of Assisted Conception” (single and same-sex options fall outside of the statute and are covered on a separate web page). The first step is contract drafting. The second typical step is amendment of the birth certificate. The other less used option under Virginia’s Statute is the Pre-Birth Approved Contract Order process discussed below. The Pre-Birth Approved Contract Order process (although more cumbersome and expensive) provides some added limited protection for the Intended Parents. However, note that the Virginia Pre-Birth Approved Contract Order process is actually a pre-approved contract process which must be done prior to any attempt at achieving pregnancy. Finally, where a Pre-Birth Order is obtained from another state it can be domesticated and given full faith and credit by a Virginia Court.

A. THE CONTRACT PHASE (PHASE ONE).

At the Adoption & Surrogacy Law Center, whether we represent the intended parent(s) or the carrier-surrogate, we currently charge a flat fee of $2,000 for drafting and negotiation of the contract and review of the carrier-surrogate’s health insurance policy (we do give a discount in “altruistic” situations where the carrier is a family member or best friend and the reimbursement payment amounts are minimal). This fee amount does not include the cost of separate representation during the contract phase for the other party (usually $1000 to $1,500). Sometimes a waiver of the sperm quarantine also may be required and this is included. Assuming all screening and pre-requisites have been addressed, the basic steps are:

(1) We obtain general background information and then send out our retainer letter agreement and request a retainer in the amount of $2,000.

(2) We send out questionnaires for the intended parent(s) and the surrogate/carrier to complete. These will assist us in drafting the contract and directing the parties towards reaching agreement on the various terms of the contract.

(3) The parties furnish us with any medical provider information, especially any agreements you have entered into, or anticipate entering into, with the medical provider(s) that will be performing the assisted reproductive technology procedure.

(4) The surrogate/carrier furnishes us with a complete copy of her health insurance policy to review (we need the entire plan or policy – not just a summary plan description).

(5) After receiving the completed questionnaires and medical provider information and reviewing the health insurance coverage (assuming we have the complete policy), we draft the contract for our client’s review and approval first. Only then is it sent for the other party’s review along with their attorney. We also will provide names of recommended attorneys for the other party. Note that the intended parents generally pay for the cost of the surrogate/carrier’s attorney as part of the overall contractual arrangement and that this is a permissible payment under Virginia law. In nearly every situation all parties are represented – there are very few and rare situations where a party might go unrepresented and it is not recommended.

(6) After receiving feedback and working out any terms that are subject to dispute between the parties, we finalize the contract and finish reviewing and/or integrating any medical provider agreements as may be necessary.

Different fee amounts are charged if another attorney is drafting the contract and/or in situations where the contract needs to be revised or amended or rewritten to comport with Virginia law.

B. THE HOSPITAL AND BIRTH CERTIFICATE AMENDMENT PHASE (PHASE TWO) FOR MARRIED INTENDED PARENTS WHERE THE CHILD IS BORN IN VIRGINIA.

We currently charge a flat fee of $1500 plus $75 costs (total of $1575) for one child for the hospital and birth certificate amendment process. We offer discounted rates for multiple children. Note that, although it is called a “birth certificate amendment process,” per the agreement, no birth certificate is actually ever issued with the carrier’s name on it unless expressly requested. Instead, only an application for the birth certificate is filled out at birth listing the carrier or surrogate – but the only birth certificate then actually issued is the one with the names of the intended parent(s) on it. As part of the flat fee, we also provide assistance with the hospital process and procedures prior to the birth as well as at the time of birth. Note that we actually start this phase two process about three to five months before the anticipated birth.

(1) Again we send a retainer letter agreement and request a retainer.

(2) Once retained, we provide the necessary hospital forms and also send out instructions regarding the hospital and birth certificate amendment process. After receiving the necessary information, we complete the pertinent amendment and consent forms to be submitted to our state department of vital statistics after the birth.

(3) We obtain the necessary doctor’s affidavit and determine if DNA testing will be necessary (this generally is subject to the doctor’s discretion).

(4) We circulate the amendment and consent forms for signature (note that in Virginia, the surrogate/carrier cannot sign until the child is 3 days old although the intended parents may sign immediately after birth).

(5) The parties must have an agreement in place that comports with Virginia law.

(5) We submit the requisite executed forms, along with a copy of the surrogacy-gestational carrier contract and the doctor’s affidavit, immediately upon receipt.

(6) A new birth certificate is issued within eight to sixteen weeks of submission. There are certain ways to expedite the process if necessary (for example, if the birth certificate is needed to obtain a passport or to secure health insurance). The old application for birth certificate is placed under seal. Provided that no one ever requests that a birth certificate based on the original application be issued, then the only birth certificate issued is the one listing the intended parents.

C. THE PRE-BIRTH APPROVED CONTRACT ORDER (ALTERNATE PROCESS FOR PHASE TWO) FOR MARRIED HETEROSEXUAL INTENDED PARENTS.

Note that there is a process in Virginia for obtaining a pre-birth Approved Contract Order that orders approval of the contract and that the intended parents are named on the birth certificate. However, the process is rarely used as home studies on both the intended parents and the surrogate-carrier and the contract must be in place BEFORE the court hearing AND the contract needs to be court approved before any medical procedure takes place that will result in a pregnancy. Thus it costs on average another $4000 to $5000 in legal fees (in addition to the home study costs which runs about $2000 to $3,000) before the parties can even start to attempt a pregnancy. Thus, this route is more expensive and cumbersome BUT somewhat better protects the Intended Parents, and is therefore recommended especially in situations involving a true surrogate (who is carrying a child formed with her own egg).

D. THE BIRTH CERTIFICATE AMENDMENT PROCESS (PHASE TWO) FOR MARRIED INTENDED COUPLES WHERE THE BIRTH OCCURS OUTSIDE OF VIRGINIA.

For situations where the child is born outside of Virginia, then we must use a different process for amending the birth certificate.  The law of the other state may be used or Virginia’s Parentage Act may be used by Virginia residents. In such instances, the parties must have DNA testing done in order to establish that at least one intended parent is the genetic parent of the child. Then we utilize Virginia’s parentage act to file a petition with the court and have an Order of Parentage entered. The Order of Parentage is then used to amend the original birth record in the other state. Where necessary, if one parent is a non-genetic parent then a step-parent adoption can be done in conjunction with the Order of Parentage.  

E. DOMESTICATION OF A PRE-BIRTH ORDER FROM ANOTHER STATE.

Where a Pre-Birth Order is obtained from another state but the child is born in Virginia, then we can request a Virginia Court to domesticate and give full faith and credit to the out of state Pre-Birth Order.

See also: Recommended Adult Books for Parents Who Conceive Children Through Assisted Reproductive Technologies and Recommended Children’s Books for Children of Assisted Reproductive Technologies

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PHONE: (804) 285-6253
FAX: (804) 545-9400

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