The intersection of medicine and law often lead to carts before horses, as when medicine has honed surrogate pregnancy to a nearly mundane thing, while Virginia’s laws creep to catch up. We noticed the D.C. Council recently lifted its 25-year ban on surrogacy contracts1, which made us consider the many ways surrogacy and divorce can become entwined. Surrogacy intersects divorce in Virginia in several ways, and we want to take time to consider them all.

Clarifying the Possibilities

In Virginia, under Code of Virginia (Chapter 9, § 20-156 through 165), a surrogate can contract with a married couple to either accept (through intrauterine insemination, or IUI) the sperm of the husband or an implanted embryo (coming from the parents or a donor). These two arrangements are called traditional surrogacy and gestational surrogacy.

The gestational mother of the child is, legally, the child’s mother. This means in both types of surrogacy the pregnant woman delivers a baby legally hers, but is contracted to give the child over to the married couple with whom she has signed the contract.

The court-approved surrogacy contract is vital to prevent the gestational mother’s husband (if she is married) from claiming the child as his own. Under the contract, Virginia law identifies the intended parents in the contract as the parents of the child.

A surrogate can only be paid for “reasonable medical and ancillary costs,” and no more. These payments can be in insurance, cash, escrow, bonds or other arrangements to which the intended parents and the surrogate agree.

Surrogacy in Virginia mainly involves five parties:

  1. The surrogate — a volunteer who has already been pregnant and can become pregnant again without reasonable fear of problems
  2. The husband/donor — Either donating sperm for IUI or for gestational surrogacy (in vitro fertilization)
  3. The wife — Medically judged unable to bear her husband’s child
  4. Medical professional — To monitor and attest to the health of the surrogate and child
  5. The child — Born of one woman but legally belonging to two other people

The Divorcing Surrogate

Suppose you contracted with a surrogate who was married to some other man. You contract to take possession of the baby when the surrogate delivers the child. You donate your sperm and she is artificially inseminated, carrying your child.

She proceeds with the pregnancy, but during her pregnancy she and her husband file for divorce. How could that affect your contract?

If you and your wife did not get a court-approved surrogacy contract (agreed to an oral arrangement, for example), or her husband did not sign off on the surrogacy contract, he could make a legal claim to be the child’s father. Legally, he is the child’s father under § 20-49.1.

This is why the court must approve the surrogacy contract, since the court will ensure that all the interested parties sign in agreement.

Contracted With a Surrogate but Getting Divorced

Another angle on surrogacy contracts and divorce, and clearly the more pressing issue for most Virginia men, puts you in a somewhat more precarious position. You and your wife signed a court-approved surrogacy contract with a Virginia woman. You donate your sperm and she is artificially inseminated (or your sperm and your wife’s egg form an embryo implanted in your surrogate), but during or before her pregnancy you and your wife file for divorce.

This, like life itself, gets very complicated very quickly. Under § 20-158 of the Code of Virginia, subsection C, surrogate parenting can be affected by divorce in two ways:

  • Even if the two of you file for divorce within 10 months before the surrogate delivered a baby conceived using your ex-wife’s egg and your sperm, you two are still the parents, meaning you as the Dad are financially responsible for supporting the child through child support, custodial arrangements and visitation
  • You and your ex-wife can be declared to not be the parents of the surrogate’s embryo if you file for divorce before in utero implantation of an embryo formed from:
    • Your sperm and another woman’s egg
    • Your ex-wife’s egg and your sperm
    • Your ex-wife’s egg and a donor sperm

In the second case, you are not responsible for the child financially or legally. You may also have left the surrogate with a pregnancy she may not want, even if you fulfill the terms of the contract and financially support her through the pregnancy. The child’s legal mother, the surrogate, can keep the child or place it for adoption without your permission.

Even Murkier Territory …

If, though, you two divorce before or during your surrogate’s pregnancy and you do have the court-approved surrogacy contract, you can still step forward and claim the child as yours. You may have to legally contend against the surrogate for custody, to assert your claim as the intended parents.

In that case, a Virginia judge may have to weigh the best interests of the child under three circumstances:

  • Are the best interests of the child served by granting parental rights to two divorcing, intended parents?
  • Are they best served by sustaining the surrogate’s prima facie designation as mother?
  • Are they best served by giving the surrogate the power to place the child for adoption?

If you are legally declared the parents, you and your ex-wife then still have to work out the same sort of custodial arrangements every other set of divorcing parents contends with, through a property settlement agreement.

To unwind the weirdness of surrogacy contracts and your divorce, contact us at The Firm for Men, 757-383-9184, or reach out to us online. We can help make sense of the challenging dilemmas and deep emotions related to surrogacy and divorce.


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