20-162 - Contracts not approved by the court; requirements.
§ 20-162. Contracts not approved by the court; requirements.
A. In the case of any surrogacy agreement for which prior court approval hasnot been obtained pursuant to § 20-160, the provisions of this section and §§20-156 through 20-159 and §§ 20-163 through 20-165 shall apply. Any provisionin a surrogacy contract that attempts to reduce the rights orresponsibilities of the intended parents, surrogate, or her husband, if any,or the rights of any resulting child shall be reformed to include therequirements set forth in this chapter. A provision in the contract providingfor compensation to be paid to the surrogate is void and unenforceable. Suchsurrogacy contracts shall be enforceable and shall be construed only asfollows:
1. The surrogate, her husband, if any, and the intended parents shall beparties to any such surrogacy contract.
2. The contract shall be in writing, signed by all the parties, andacknowledged before an officer or other person authorized by law to takeacknowledgments.
3. Upon expiration of three days following birth of any resulting child, thesurrogate may relinquish her parental rights to the intended parents, if atleast one of the intended parents is the genetic parent of the child, bysigning a surrogate consent and report form naming the intended parents asthe parents of the child. The surrogate consent and report form shall bedeveloped, furnished and distributed by the State Registrar of Vital Records.The surrogate consent and report form shall be signed and acknowledged beforean officer or other person authorized by law to take acknowledgments. Thesurrogate consent and report form, a copy of the contract, and a statementfrom the physician who performed the assisted conception stating the geneticrelationships between the child, the surrogate, and the intended parents, atleast one of whom shall be the genetic parent of the child, shall be filedwith the State Registrar within 180 days after the birth. The statement fromthe physician shall be signed and acknowledged before an officer or otherperson authorized by law to take acknowledgments. There shall be a rebuttablepresumption that the statement from the physician accurately states thegenetic relationships among the child, the surrogate and the intendedparents. Where a physician's statement is not available, DNA testingestablishing the genetic relationships between the child, the surrogate, andthe intended parents may be substituted for the physician's statement.
4. Upon the filing of the surrogate consent and report form and the requiredattachments, including the physician's statement, within 180 days of thebirth, a new birth certificate shall be established by the State Registrarfor the child naming the intended parents as the parents of the child asprovided in § 32.1-261.
B. Any contract governed by the provisions of this section shall include or,in the event such provisions are not explicitly covered in the contract orare included but are inconsistent with this section, shall be deemed toinclude the following provisions:
1. The intended parents shall be the parents of any resulting child only whenthe surrogate relinquishes her parental rights as provided in subdivision A 3of this section and a new birth certificate is established as provided insubdivision A 4 of this section and § 32.1-261;
2. Incorporation of this chapter and a statement by each of the parties thatthey have read and understood the contract, they know and understand theirrights and responsibilities under Virginia law, and the contract was enteredinto knowingly and voluntarily; and
3. A guarantee by the intended parents for payment of reasonable medical andancillary costs either in the form of insurance, cash, escrow, bonds, orother arrangements satisfactory to the parties, including allocation ofresponsibility for such costs in the event of termination of the pregnancy,termination of the contract, or breach of the contract by any party.
C. Under any contract that does not include an allocation of responsibilityfor reasonable medical and ancillary costs in the event of termination of thepregnancy, termination of the contract, or breach of the contract by anyparty, the following provisions shall control:
1. If the intended parents and the surrogate and her husband, if any, and ifhe is a party to the contract, consent in writing to termination of thecontract, the intended parents are responsible for all reasonable medical andancillary costs for a period of six weeks following the termination.
2. If the surrogate voluntarily terminates the contract during the pregnancy,without consent of the intended parents, the intended parents shall beresponsible for one-half of the reasonable medical and ancillary costsincurred prior to the termination.
3. If, after the birth of any resulting child, the surrogate fails torelinquish parental rights to the intended parents pursuant to the contract,the intended parents shall be responsible for one-half of the reasonablemedical and ancillary costs incurred prior to the birth.
(1991, c. 600; 2000, c. 890; 2010, c. 712.)