West Virginia Surrogacy Law
Author:
James
Shrybman, Attorney at Law
West Virginia is a
surrogacy-friendly state. Some states have a great deal of law on the
subject of surrogacy...either from state statutes or appellate court
cases. Other states have no law, which leaves the question up in the
air. West Virginia has only ONE sentence in its law which is
incredibly significant.
Section 48-4-l6 of the West Virginia Code prohibits the purchase or sale of a child or otherwise paying money in return for a biological parent's consent to an adoption. This type of statute is commonly found in adoption sections of state codes throughout the country. These laws also carve out certain exceptions such as the payment of fees to adoption agencies, doctors, hospitals, or lawyers, etc., which are reasonable and customary in connection with the birth of a child and the adoption placement. This section of West Virginia law follows the norm.
However, the West Virgina law adds one exception not usually found in the adoption statutes of other states. Section 48-4-16 (e)(3) provides the additional exception for "Fees and expenses included in any agreement in which a woman agrees to become a surrogate mother."
Stated affirmitively...Surrogacy is legal.
If a surrogate lives in West Virginia and delivers the baby in West Virginia, she can be paid for her services.
The next question is what legal action can the intended parents take to make the child legally theirs. That depends on what kind of surrogacy it is. If the surrogacy was by artificial insemination of the intended father's sperm, his wife would need to adopt the child to make her the legal mother. West Virginia's code allows persons who live in West Virginia to adopt in West Virginia courts. It does not provide for non-resident petitioners. The wife of the father would need to adopt in her home jurisdiction, unless she resides in West Virginia.
If the surrogacy was by embryo transfer from the parents' genetic material, they would not need to adopt. They would simply need to follow the procedures for the creation of a new birth certificate reflecting the correct information about the child's parentage.
If the surrogacy was by embryo transfer from one parent and the genetic material of a known donor, the spouse of the genetic parent would need to adopt in his or her home jurisdiction, unless that individual lives in West Virginia.
The clear statement in the West Virginia law regarding the payment of fees to a surrogate in accordance with a surrogacy agreement means that the public policy of the state is not negative on surrogacy. West Virginia is a surrogacy friendly state. However, you should not proceed with a surrogacy based on the information in this piece alone. You should consult a knowlegeable attorney in West Virginia and your home jurisdiction if it is not West Virginia.
This piece is not meant to be taken as legal advice in substitution for a lawyer who can advise you with regard to the particular circumstances of your case.
December 1996
Copyright 1996. The American Surrogacy
Center, Inc.(TASC), Kennesaw, GA
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