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West Virginia Surrogacy Law Overview

The Center for Surrogate Parenting walks you through West Virginia surrogacy law

Surrogacy is a beautiful family-building method. However, it can be complex, especially when it comes to the laws surrounding it. Thankfully, our experienced surrogacy agency is well-versed in the surrogacy laws of each state, including West Virginia surrogacy law. In fact, the Center for Surrogate Parenting (CSP) has completed several finalizations of parental rights in this state.

As the oldest surrogacy agency in the world, we have helped U.S. and international parents to welcome healthy babies with help from U.S. surrogates. We are proud to say that we have never experienced issues with intended parents being able to bring their babies home.

To help you learn more about West Virginia surrogacy law and how to create a surrogacy contract, we’ve included some basic information below. You can also contact us for more information.

    • Is a surrogacy contract valid and enforceable?

      Surrogacy is indirectly permitted by statute in West Virginia. However, the statute is part of the state’s criminal code, so it is not especially applicable to surrogacy arrangements. Surrogacy is nonetheless an accepted practice in the state and married parents will typically be treated favorably by the courts.

    • Does the state have surrogacy laws and/or case law?

      Statutory law permits gestational surrogacy.

    • Are the courts typically favorable or unfavorable towards surrogacy arrangements?

      West Virginia courts are typically favorable towards surrogacy arrangements.

    • Is commercial surrogacy legal?

      Commercial surrogacy is legal in West Virginia and the intended parents are permitted to compensate the surrogate for her time and expenses. Such compensation is typically arranged for in a surrogacy contract.

    • Is traditional surrogacy permitted?

      Yes, because it is not statutorily prohibited.

    • Is gestational surrogacy allowed?

      Yes, gestational surrogacy is implicitly permitted by statute.

    • What are the requirements for an enforceable surrogacy contract?

      Since West Virginia does not have a statutory rule on this, there is not a specific set of guidelines for when a judge may uphold the validity of a surrogacy arrangement. Parties should articulate their intentions, desires, roles and responsibilities as clearly and specifically as possible to provide proper framework for dispute resolution should an issue arise.

      Generally, the intended parents and surrogate should meet specific requirements and have independent counsel. The agreement should include provisions that discuss the legal, financial, and contractual rights, expectations, penalties and obligations of the surrogacy agreement.

    • Are pre-birth and post-birth orders permitted?

      When granting parentage orders, West Virginia courts tend to favor married couples, so pre-birth orders will usually be granted to married heterosexual or same sex couples, and single parents, when at least one (or both) of them are genetically related to the child.

      If the parents are married but neither is genetically related to the child, it is likely, although uncertain, that a West Virginia court would grant a pre-birth order. For unmarried couples, it is unclear whether West Virginia courts will issue pre-birth orders.

    • Can both intended parents be declared the legal parents?

      Yes, if the parents are a married heterosexual or same-sex couple and at least one of them is genetically related to the child. Most likely yes, if the parents are married but neither is genetically related to the child. Possibly, if the parents are unmarried, but the courts in West Virginia tend to favor married couples when granting parentage orders.

    • Will the state honor a pre-birth order issued by another state?

      Most likely, but it is uncertain.

    • What do intended parents need to know about getting the baby’s birth certificate?

      The parents will receive the birth certificate within 10 days. How same-sex parents are named depends on whether they are married and if there is a court order. If so, they will be named as “Parent and Parent.” If not, only the genetic parent will be named.

      International gay couples can obtain an initial birth certificate that names the biological father and surrogate. They are likely to subsequently obtain a birth certificate that names the biological father or both fathers, with no mention of the surrogate, but this is not certain.

    • Are post-birth adoptions permitted?

      Parents who are unable to obtain a parentage order will be required to complete a post-birth adoption in order to obtain and secure their legal parental rights. Specifically, a post-birth adoption will be necessary when neither parent is genetically related to the child. However, only married parents can file for adoption in West Virginia because the state only allows for stepparent adoptions and does not permit second parent adoptions.

    • Are second-parent adoptions permitted?

      Second-parent adoptions are not permitted in West Virginia, so unmarried parents will be required to pursue a second-parent adoption outside the state in order to secure his or her legal parental rights.

      It is likely, but not certain, that West Virginia Vital Records will honor a second-parent adoption order issued by a different state, thus permitting unmarried parents to return to West Virginia and obtain an amended birth certificate that is consistent with the out-of-state second-parent adoption order.

    • Are stepparent adoptions permitted?

      Yes, and they are available to married couples.

VorzimerMasserman Disclaimer: This is a summary for informational use only and should not be relied upon for legal advice. Please note that the state laws regarding surrogacy frequently change and vary from county to county. The attorneys of VorzimerMasserman are only licensed in California. VorzimerMasserman shall not be responsible for any liability associated with this list.