The Ins and Outs of Surrogacy: Understanding the Types and Legalities in West Virginia

Surrogacy has become an increasingly popular option for singles and both heterosexual and homosexual couples.

However, this is still a controversial topic in many states, and this area of the law is evolving, which makes understanding legal implications of surrogacy difficult for anyone who is thinking about entering into such an arrangement.

Let’s go over the general definition of surrogacy, the types, and West Virginia’s legal framework.

DEFINITION AND TYPES

Surrogacy is an arrangement where a woman (the surrogate) agrees to carry and give birth to a child for another person or couple (the intended parents). There are two main types of surrogacy: traditional and gestational. In traditional surrogacy, the surrogate's egg is used, making her the biological mother of the child. In gestational surrogacy, the egg and sperm come from the intended parents or donors, and the surrogate has no genetic link to the child.

IS SURROGACY LEGAL IN WEST VIRGINIA

Most likely, yes. West Virginia has excepted surrogacy contracts from criminal prosecution. A surrogacy contract is not a prohibited purchase or sale of a child. W. Va. Code § 61-2-14h(e)(3) (2024).

For those interested in entering or creating a surrogacy contract in West Virginia, a Senate Bill detailing the requirements of such a contract was introduced and passed on February 26, 2024, and it was then ordered to the House of Delegates. Although the Bill, SB 575, has not become law at the time of the writing of this Article, the Bill would enact several new sections of the West Virginia Code, W. Va. Code § 16-67-1 et seq.

For example, under the proposed legislation, a surrogacy agreement would need to be approved by the Circuit Court in the location of the surrogate or of the hospital where the child is most likely to be born. The surrogate would have to be 21 years of age, have previously given birth to at least one child, and be adjudged medically and mentally suitable for the act of surrogacy. Both the intended parents and the surrogate would need to have independent legal representation and the intended parents are responsible for the payment of the surrogate’s legal fees. Pre-Birth orders can be obtained before the child is born, allowing the intended parents to be recognized as the legal parents immediately upon birth.

While there are a few proposed laws to govern the provisions of a surrogacy contract, it is crucial for both parties to work with experienced attorneys in considering the contents of such a contract. These agreements typically cover compensation, rights and responsibilities, and procedures for potential complications.

Importantly, under the Senate Bill, surrogacy is not a commercial enterprise; The bill would make commercial surrogate brokering a misdemeanor punishable by up to a year in jail and a fine of up to $10,000; however, surrogates themselves may be compensated for their services.

CONCLUSION

Given the complexities involved in surrogacy agreements, and the evolving nature of the law, it is essential for both intended parents and surrogates to seek legal counsel. Working with experienced attorneys can help navigate the legal requirements and ensure that the rights and responsibilities of all parties are clearly defined and protected.

Surrogacy in West Virginia offers a promising path for those looking to build their family through this method. With prospect of supportive laws, and the possibility of compensated surrogacy, the state provides a conducive environment for both surrogates and intended parents.