The Legal Process

CONTRACTING FOR A SURROGATE/ CARRIER

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Generally, for single or married 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.” The first step is contract drafting. The second typical step is amendment of the birth certificate, and in cases of same-sex or international Intended Parents, obtaining a post-birth parentage order. Also, 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 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. 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 engage in an initial consultation and obtain general background information. Prior to the consultation we provide a myriad of resource materials. After the consultation, we then send out our retainer letter agreement and request a retainer.

(2) In order to proceed with contract drafting, we provide and obtain a completed prerequisite checklist and questionnaires for the intended parent(s) and the surrogate/carrier to complete. A surrogate in Virginia also must provide a clearance note from her ob-gyn and complete a monthly expense form in order to justify any monthly living expense payments (unless she is a100% compassionate surrogate and not being reimbursed any monthly living expenses). 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) If applicable, 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 prerequisite checklist, monthly expense form, questionnaires and medical provider information and reviewing the health insurance coverage (assuming we need to do so and 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. The intended parents and the surrogate/carrier must have separate legal representation.

(6) After receiving feedback and working out any terms that are subject to dispute between the parties, we finalize the contract and have it executed by the parties.

(7) After the contract is executed and in final form we send a legal clearance letter to any involved fertility clinic.

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

Although it is called a “birth certificate amendment process,” typically no birth certificate is actually ever issued with the surrogate/carrier’s name on it unless expressly requested. Instead, only an application for the birth certificate is filled out at birth at the hospital listing the carrier or surrogate – but the only birth certificate that actually issued is the one from the Virginia Department of VItal Records with the names of the intended parent(s) on it. As part of our flat fee service, 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 twenty weeks of submission. There are certain informal 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 POST-BIRTH PARENTAGE ORDER. 

In cases involving same-sex couples or international intended parents, and in some cases of single parents, we also obtain a post-birth parentage order for an additional flat fee. This typically requires DNA testing to show that at least one intended parent is genetically connected to the child or, alternatively, legal ownership of a donated embryo. The court documents are executed by all parties before a notary and the Court typically enters the Order within about four to eight weeks of filing.

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

For situations where the child is born outside of Virginia, then usually a pre-birth or post-birth order is obtained in the other state. Alternatively, we can 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. In some cases, the Order may have to be given full faith and credit by a court in the other state before that state’s vital records department will honor the Virginia order.

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. The Virginia Department of Vital Records then will honor the Virginia Order.

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