West Virginia

Surrogacy Law in West Virginia

West Virginia Surrogacy Law: Types of Surrogacy

In West Virginia, gestational surrogacy is permissible under West Virginia Code §61-2-14h(e)(3), which permits “fees and expenses included in any agreement in which a woman agrees to become a surrogate mother.” The courts are generally favorable to married couples, regardless of sexual orientation, and will entertain a petition for a pre-birth order as provided in the surrogacy agreement.

Traditional (genetic) surrogacy is similarly permitted in West Virginia because no statute or published case law prohibits it, provided that the agreement is well drafted.

Are There Surrogate Requirements in West Virginia?

No specific legal requirements exist to serve as a gestational surrogate in the state of West Virginia; agreements with gestational surrogates under the age of 18 are considered to be high risk for challenge.

Does West Virginia Surrogacy Law Allow for Pre-Birth Orders?

Parentage Orders: Courts in West Virginia do grant pre-birth orders.

The conditions under which intended parents could be declared legal parents with a pre-birth order if at least one parent is genetically related to the child are listed below:

Yes

Married heterosexual couples, using their own egg and own sperm
Married heterosexual couples, using a sperm or egg donor
Married same sex couples, using an egg or sperm donor
Single parents using an egg or sperm donor

Maybe

Unmarried heterosexual couples, using their own egg and own sperm
Unmarried heterosexual couples, using an egg or sperm donor
Unmarried same sex couples, using an egg or sperm donor

For intended parents who are in no way related to the resulting child, the conditions under which intended parents could be declared legal parents with a pre-birth order are listed below:

Yes

Married heterosexual couples
Married same sex couples
Single parents

Unmarried heterosexual couples
Unmarried same sex couples

Whose names go on the birth certificate in West Virginia?

Parents will be listed on the birth certificate as “parent” and “parent” if a pre-birth order is obtained; only the gestational carrier (and her husband, if any) will be named.

An international same-sex male couple can obtain a birth certificate listing one of the men as parent. A later amended version can probably be provided, listing the two fathers as the legal parents. It can be expedited by the child being born in state if the parents are married, but a second-parent adoption could be obtained out of state and then documented in WV to update the birth certificate.

Surrogacy Conditions for Same-Sex Couples in West Virginia

Conditions are favorable for same-sex couple to use a surrogate in West Virginia.

Are There Options for Unmarried Intended Parents in the state of West Virginia?

You could have one parent be named by means of a pre-birth order, and the second by means of a stepparent adoption.  Some courts may allow an unmarried couple to be listed as the parents on the birth certificate, but the courts are not required to do so, and the department of vital statistics may still refuse to issue the birth certificate; this has not been tested.

Egg Donation Law

West Virginia has no case law or statutes to govern a donor’s rights to children resulting from a surrogacy agreement.

State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in West Virginia*

Monika L. Jaennson, Partner
Dinsmore & Shohl LLP
707 Virginia Street E, Ste. 1300
Charleston, WV 25301
Phone: 304.357.9924
monika.jaensson@dinsmore.com
https://www.dinsmore.com/monika-l-jaensson

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state.