2006 Code of Virginia § 20-160 - Petition and hearing for court approval of surrogacy contract; requirements; orders

20-160. Petition and hearing for court approval of surrogacy contract;requirements; orders.

A. Prior to the performance of assisted conception, the intended parents, thesurrogate, and her husband shall join in a petition to the circuit court ofthe county or city in which at least one of the parties resides. Thesurrogacy contract shall be signed by all the parties and acknowledged beforean officer or other person authorized by law to take acknowledgments.

A copy of the contract shall be attached to the petition. The court shallappoint a guardian ad litem to represent the interests of any resulting childand shall appoint counsel to represent the surrogate. The court shall order ahome study by a local department of social services or welfare or a licensedchild-placing agency, to be completed prior to the hearing on the petition.

All hearings and proceedings conducted under this section shall be held incamera, and all court records shall be confidential and subject to inspectiononly under the standards applicable to adoptions as provided in 63.2-1245.The court conducting the proceedings shall have exclusive and continuingjurisdiction of all matters arising under the surrogacy contract until allprovisions of the contract are fulfilled.

B. The court shall hold a hearing on the petition. The court shall enter anorder approving the surrogacy contract and authorizing the performance ofassisted conception for a period of twelve months after the date of theorder, and may discharge the guardian ad litem and attorney for the surrogateupon finding that:

1. The court has jurisdiction in accordance with 20-157;

2. A local department of social services or welfare or a licensedchild-placing agency has conducted a home study of the intended parents, thesurrogate, and her husband, and has filed a report of this home study withthe court;

3. The intended parents, the surrogate, and her husband meet the standards offitness applicable to adoptive parents;

4. All the parties have voluntarily entered into the surrogacy contract andunderstand its terms and the nature, meaning, and effect of the proceedingand understand that any agreement between them for payment of compensation isvoid and unenforceable;

5. The agreement contains adequate provisions to guarantee the payment ofreasonable medical and ancillary costs either in the form of insurance, cash,escrow, bonds, or other arrangements satisfactory to the parties, includingallocation of responsibility for such costs in the event of termination ofthe pregnancy, termination of the contract pursuant to 20-161, or breach ofthe contract by any party;

6. The surrogate is married and has had at least one pregnancy, and hasexperienced at least one live birth, and bearing another child does not posean unreasonable risk to her physical or mental health or to that of anyresulting child. This finding shall be supported by medical evidence;

7. Prior to signing the surrogacy contract, the intended parents, thesurrogate, and her husband have submitted to physical examinations andpsychological evaluations by practitioners licensed to perform such servicespursuant to Title 54.1, and the court and all parties have been given accessto the records of the physical examinations and psychological evaluations;

8. The intended mother is infertile, is unable to bear a child, or is unableto do so without unreasonable risk to the unborn child or to the physical ormental health of the intended mother or the child. This finding shall besupported by medical evidence;

9. At least one of the intended parents is expected to be the genetic parentof any child resulting from the agreement;

10. The husband of the surrogate is a party to the surrogacy agreement;

11. All parties have received counseling concerning the effects of thesurrogacy by a qualified health care professional or social worker, and areport containing conclusions about the capacity of the parties to enter intoand fulfill the agreement has been filed with the court; and

12. The agreement would not be substantially detrimental to the interests ofany of the affected persons.

C. Unless otherwise provided in the surrogacy contract, all court costs,counsel fees, and other costs and expenses associated with the hearing,including the costs of the home study, shall be assessed against the intendedparents.

D. Within seven days of the birth of any resulting child, the intendedparents shall file a written notice with the court that the child was born tothe surrogate within 300 days after the last performance of assistedconception. Upon the filing of this notice and a finding that at least one ofthe intended parents is the genetic parent of the resulting child assubstantiated by medical evidence, the court shall enter an order directingthe State Registrar of Vital Records to issue a new birth certificate namingthe intended parents as the parents of the child pursuant to 32.1-261.

If evidence cannot be produced that at least one of the intended parents isthe genetic parent of the resulting child, the court shall not enter an orderdirecting the issuance of a new birth certificate naming the intended parentsas the parents of the child, and the surrogate and her husband shall be theparents of the child.

(1991, c. 600; 2000, c. 830.)