Surrogacy and Third Party Parenting Rights

Surrogacy Agreements

Virginia’s assisted conception statute, Virginia Code § 20-156, et seq., controls “without exception, in any action brought in the courts of this Commonwealth to enforce or adjudicate any rights or responsibilities arising under this chapter.”[1] Generally, the parentage of any child resulting from the performance of assisted conception shall be determined as follows:

The gestational mother of a child is the child's mother.

The husband of the gestational mother of a child is the child's father, notwithstanding any declaration of invalidity or annulment of the marriage obtained after the performance of assisted conception, unless he commences an action in which the mother and child are parties within two years after he discovers or, in the exercise of due diligence, reasonably should have discovered the child's birth and in which it is determined that he did not consent to the performance of assisted conception.

A donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.[2]

For instance, imagine that Gestational Mother is carrying Biological Intended Mother’s egg and Biological Intended Father’s sperm without a contract. Gestational Mother is married to Non-Biological Husband. Under Virginia Code Section 20-158(A), the court would determine that Gestational Mother and Non-Biological Husband are the child’s mother and father.

However, where the parties have entered into a court approved written surrogacy contract pursuant to Virginia Code § 20-160(D), the intended parents are the parents of the resulting child.[3]  By contrast, where the parties have entered into a surrogacy contract that has not been approved by a court as provided in § 20-160, the parentage of any resulting child shall be determined as follows:

The gestational mother is the child's mother unless the intended mother is a genetic parent, in which case the intended mother is the mother.

If either of the intended parents is a genetic parent of the resulting child, the intended father is the child's father. However, if (i) the surrogate is married, (ii) her husband is a party to the surrogacy contract, and (iii) the surrogate exercises her right to retain custody and parental rights to the resulting child pursuant to § 20-162, then the surrogate and her husband are the parents.

If neither of the intended parents is a genetic parent of the resulting child, the surrogate is the mother and her husband is the child's father if he is a party to the contract. The intended parents may only obtain parental rights through adoption as provided in Chapter 12 (§ 63.2-1200 et seq.) of Title 63.2.

After the signing and filing of the surrogate consent and report form in conformance with the requirements of subsection A of § 20-162, the intended parents are the parents of the child and the surrogate and her husband, if any, shall not be the parents of the child.[4]

Third Party Parenting Rights

The Supreme Court of the United States has long recognized a parent’s right to the care, custody and management of his or her children to be constitutionally protected as a fundamental right.[5] The state must have a compelling interest to interfere with a fundamental right.[6] To constitute a compelling state interest, the state’s interference with the parent’s right to raise his or her child must be to protect the health or welfare of the child.[7]

Virginia law permits a non-parent to seek custody, visitation, support, or control of a child.[8] In determining whether to grant such rights to a non-parent, a court must “give due regard to the primacy of the parent-child relationship.”[9] However, a court “may upon a showing by clear and convincing evidence that the best interests of the child would be served, thereby award custody or visitation to any other person with a legitimate interest.”[10] Courts have liberally construed the standing requirement for “persons with a legitimate interest.”[11] The term is broadly construed to accommodate the best interests of the child.[12] Those with a standing have include, but is not limited to, grandparents, stepparents, and blood relatives.[13]

For a non-parent exercise rights of parents, the court must find a compelling state interest to satisfy the constitutional requirement to justify state interference.[14] Thus, before such rights “can be ordered over the objection of the child's parents, a court must find an actual harm to the child's health or welfare without such rights being granted.[15]

Special thanks to Mallory Brennan for editorial, research, and writing assistance.

[1] Va. Code § 20-157.

[2] Va. Code § 20-158(A). 

[3] Va. Code §§ 20-158(D) and 20-159(A). 

[4] Va. Code § 20-158(E).

[5] See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (stating that parent’s relationship with his child is a “basic civil rights of man”); May v. Anderson, 345 U.S. 528, 533 (1953) (noting that the parent-child relationship is “far more precious … than property rights.”); Damon v. York, 54 Va. App. 544, 552 (2009) (citing Griffin v. Griffin, 41 Va. App. 77, 82 (2003), which quotes Troxel v. Granville, 530 U.S. 57, 65 (2000)).