Gestational Surrogacy is permitted in West Virginia by W.VA 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.”
Do courts grant pre-birth parentage orders? Yes
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
What are the bases for venue? Kanawha County where the Bureau of Vital Statistics is located, or the county of the child’s birthplace
Do results vary by venue? Yes, and results may vary by judge.
If yes, are motions to waive venue accepted? No
Is a hearing required to obtain a pre-birth order? Yes, and the Intended Parents must attend. A notice of the hearing must be provided to the Gestational Carrier, her husband if she is married, and their attorney.
Is a pre-birth order possible in West Virginia based on a Gestational Carrier’s plan to deliver in West Virginia, if no party lives in West Virginia? Unclear
Will West Virginia Vital Records honor a pre-birth order from another state? Probably
What is the typical time frame to obtain a birth certificate after delivery? 10 days
How are same-sex parents named on the final birth certificate? Depends on: If there is a court order and parents are legally married, then Parent and Parent. Otherwise, only the biological parent is named.
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Probably
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in West Virginia (i.e., neither of the Intended Parents lives in West Virginia)? Yes, if married
If no, will West Virginia Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Probably
Note: This situation typically arises if the child is born outside the state. The parents reside in West Virginia and then return to West Virginia to obtain a second parent adoption or stepparent adoption in West Virginia.
Will courts in West Virginia grand second parent adoptions or stepparent adoptions to heterosexual couples living in West Virginia? Yes
Does the couple need to be married? Yes
Will courts in West Virginia grant second parent adoptions or stepparent adoptions to same-sex couples living in West Virginia? Yes
Does the couple need to be married? Yes
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? No
Traditional Surrogacy is permitted in West Virginia because no statute or published case law prohibits it.
David Barnette
dbarnette@jacksonkelly.com
(304) 340-1327
Monika L. Jaensson
monika.hussell@dinslaw.com
(304) 357-9924
Surrogacy laws are different from state to state across the US. We have compiled the leading state-by-state surrogacy law map that features laws as actually practiced in all 50 states. The US Surrogacy Law Map™ is protected by US Copyright laws and is the sole and exclusive property of Creative Family Connections LLC (“CFC”).