Virginia § 20-158 - Parentage of child resulting from assisted conception

§ 20-158. Parentage of child resulting from assisted conception

A. Determination of parentage, generally. — Except as provided in subsections B, C, D, and E, the parentage of any child resulting from the performance of assisted conception shall be determined as follows:

1. The gestational mother of a child is the child's mother.

2. The spouse of the gestational mother of a child is the child's other parent, notwithstanding any declaration of invalidity or annulment of the marriage obtained after the performance of assisted conception, unless such spouse commences an action in which the mother and child are parties within two years after such spouse discovers or, in the exercise of due diligence, reasonably should have discovered the child's birth and in which it is determined that such spouse did not consent to the performance of assisted conception.

3. A donor is not the parent of a child conceived through assisted conception, unless the donor is the spouse of the gestational mother.

B. Death of spouse. — Any child resulting from the insemination of a gestational mother's ovum using her spouse's sperm, with his consent, is the child of the gestational mother and her spouse notwithstanding that, during the 10-month period immediately preceding the birth, either party died.

However, any person who dies before in utero implantation of an embryo resulting from the union of the spouse's sperm or gestational mother's ovum with another gamete, whether or not the other gamete is that of the person's spouse, is not the parent of any resulting child unless (i) implantation occurs before notice of the death can reasonably be communicated to the physician performing the procedure or (ii) the person consents to be a parent in writing executed before the implantation.

C. Divorce. — Any child resulting from insemination of a gestational mother's ovum using her spouse's sperm, with his consent, is the child of the gestational mother and her spouse notwithstanding that either party filed for a divorce or annulment during the 10-month period immediately preceding the birth. Any person who is a party to an action for divorce or annulment commenced by filing before in utero implantation of an embryo resulting from the union of the spouse's sperm or gestational mother's ovum with another gamete, whether or not the other gamete is that of the person's spouse, is not the parent of any resulting child unless (i) implantation occurs before notice of the filing can reasonably be communicated to the physician performing the procedure or (ii) the person consents in writing to be a parent, whether the writing was executed before or after the implantation.

D. Birth pursuant to court approved surrogacy contract. — After approval of a surrogacy contract by the court and entry of an order as provided in subsection D of § 20-160, the intended parent is the parent of any resulting child. However, if the court vacates the order approving the agreement pursuant to subsection B of § 20-161, the surrogate who is the genetic parent is the mother of the resulting child and her spouse, if any, is the other parent. The intended parent may only obtain parental rights through adoption as provided in Chapter 12 (§ 63.2-1200 et seq.) of Title 63.2.

E. Birth pursuant to surrogacy contract not approved by court. — In the case of a surrogacy contract that has not been approved by a court as provided in § 20-160, the parentage of any resulting child shall be determined as follows:

1. The gestational mother is the child's mother unless the intended mother is a genetic parent, in which case the intended mother is the mother.

2. If an intended parent is a genetic parent of the resulting child, such intended parent is the child's parent. However, if (i) the surrogate is a genetic parent, (ii) the surrogate is married and her spouse is a party to the surrogacy contract, and (iii) the surrogate who is a genetic parent exercises her right to retain custody and parental rights to the resulting child pursuant to § 20-162, then the surrogate and her spouse are the parents. If the surrogate is unmarried and (a) is a genetic parent, (b) is a party to the surrogacy contract, and (c) exercises her right to retain custody and parental rights to the resulting child pursuant to § 20-162, then the surrogate is the parent.

3. If no intended parent is a genetic parent of the resulting child, but the embryo that was used is subject to the legal or contractual custody of an intended parent, then such intended parent is the parent. However, if no intended parent is a genetic parent, and the embryo that was used is not subject to the legal or contractual custody of such intended parent, then the surrogate is the mother and her spouse, if any, is the child's other parent if such other parent is a party to the contract. In such an event, the intended parent may only obtain parental rights through adoption as provided in Chapter 12 (§ 63.2-1200 et seq.) of Title 63.2.

4. After the signing and filing of the surrogate consent and report form in conformance with the requirements of subsection A of § 20-162, the intended parent is the parent of the child and the surrogate and her spouse, if any, shall not be the parents of the child.

1991, c. 600; 1997, c. 81; 2000, c. 830; 2019, c. 375.