NEWS
West Virginia University College of Law
Surrogacy in West Virginia : The Statutes Must Catch Up to Technology
To some , the question of whose name goes on a birth certificate seems easy to answer , at least until advanced technologies like surrogacy are considered . While surrogacy may seem like something only done by wealthy families , surrogacy is rapidly increasing in popularity . The popularity of surrogacy has grown significantly , with surrogacy reported births in the United States ( US ) increasing annually . In 2004 , there were 738 babies born through gestational surrogates ; by 2015 , there were 2,807 . 1 What started as a littleknown procedure used to aid couples struggling to conceive is set to grow into a $ 27.5 billion global market by 2025 . 2 The combined surrogacy market for North America , encompassing Canada , the US , and Mexico , is estimated to attain a compound annual growth rate of more than 40.7 % through 2027 . 3
Surrogacy is a growing industry in the state of West Virginia ( WV ) as well . 4 There are numerous resources for women to apply to become surrogates , 5 and there is also the promise of compensation , with a base fee for surrogates starting between $ 40,000 to $ 50,000 . 6 Unfortunately , WV is currently a state with no legal precedent to govern surrogacy and very limited statutory guidance . 7
WV Code § 16-5-10 ( e ), 8 which details both the presumption of maternity and paternity in WV states : “ for the purposes of birth registration , the woman who gives birth to the child is presumed to be the mother , unless otherwise specifically provided by state law or determined by a court of competent jurisdiction prior to the filing of the certificate of birth .” 9
There is no state law challenging this designation ; instead , the law permitting surrogacy merely decriminalizes the procedure itself . Therefore , expectant parents who wish to be listed on the birth certificate often need to complete paperwork such as a pre-birth order , an order signed by all parties involved prior to the birth of the child dictating who will be listed on the birth certificate as the child ’ s parents or parent . 10 Unfortunately , there are no clear rules detailing how to write or appropriately judicially apply for a prebirth order within WV .
There is also a lack of guidance within the state to redress issues if a pre-birth agreement or surrogacy contract is the subject of litigation . Although the WV Code offers a redress for the wrong father being named on a child ’ s birth certificate , 11 it does not offer a process for overcoming the presumption of maternity . The code ’ s assumption that the woman who gives birth to a child is the child ’ s biological mother is , at this point , an outdated concept . While there are contractual remedies for individuals in WV who wish to engage in surrogacy and avoid these issues , the code itself needs to be updated to align with the ways in which science influences modern birth .
Comprehensive surrogacy reform within WV is imperative . The ultimate goal of updating and repairing state law should be the health and wellness of the citizens . Couples who wish to have children of their own should be able to do so . Women in WV who wish to become surrogates but not mothers should have a clear path forward . Reproductive technology is a rapidly growing industry . As its growth increases , so do the complications for all involved . It is time that the laws regulating surrogacy in WV catch up .
16 • www . wvsma . org