WEST virginia legislature
2024 regular session
Committee Substitute
for
Committee Substitute
for
Senate Bill Number 575
By Senator Takubo
[Originating in the Committee on the Judiciary; reported February 23, 2024]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-67-1, §16-67-2, §16-67-3, §16-67-4, §16-67-5, §16-67-6, §16-67-7, §16-67-8, §16-67-9, §16-67-10, §16-67-11, §16-67-12, §16-67-13, §16-67-14, §16-67-15, §16-67-16, §16-67-17, §16-67-18, and §16-67-19, all relating to assisted reproduction; defining terms; setting forth criteria to enter into gestational or genetic surrogacy agreement; requiring surrogacy agreement to be executed; setting forth process for agreement; setting forth content of agreement; setting forth effect of subsequent change in marital status in the agreement; setting forth exclusive and continuing jurisdiction of the court; providing for termination of the surrogacy agreement; providing for parentage as provided under the gestational surrogacy agreement; providing for inspection of documents; providing for parentage of deceased intended parent; providing for order of parentage; providing for the effect of the gestational surrogacy agreement; providing for the requirements to validate a genetic surrogacy agreement; providing for termination of a genetic surrogacy agreement; providing for parentage under a validated genetic surrogacy agreement; providing for the effect of a non-validated genetic surrogacy agreement; providing for the parentage of the child in the event of a deceased parent in a genetic surrogacy agreement; providing for breach of a genetic surrogacy agreement; and declaring that the state will honor surrogacy agreements entered into in other jurisdictions and apply the law of that jurisdiction; creating the criminal offense of commercial surrogate brokering and establishing criminal penalties.
Be it enacted by the Legislature of West Virginia:
ARTICLE 67. ASSISTED REPRODUCTION ACT.
§16-67-1. Definitions.
As used in this article:
(1) “Assisted reproduction” means a method of causing pregnancy other than sexual intercourse. The term includes:
(A) Intrauterine or intracervical insemination;
(B) Donation of gametes.
(C) Donation of embryos.
(D) In vitro fertilization and transfer of embryos; and
(E) Intracytoplasmic sperm injection.
(2) "Genetic surrogate" means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using her own gamete, under a gestational surrogacy agreement as provided in this article.
(3) "Gestational surrogacy" means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using gametes that are not her own, under a gestational surrogacy agreement as provided in this article.
(4) “Intended parent” means an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction.
(5) "Surrogacy agreement" means an agreement between one or more intended parents and a woman who is not an intended parent in which the woman agrees to become pregnant through assisted reproduction, and which provides that each parent is a parent of a child conceived under the agreement. Unless otherwise specified, the term refers to both a gestational surrogacy agreement and a genetic surrogacy agreement.
(6) “Transfer” means a procedure for assisted reproduction by which an embryo or sperm is placed in the body of a woman who will give birth to the child.
§16-67-2. Eligibility to enter into gestational or genetic surrogacy agreement.
(1) Have attained 21 years of age;
(2) Previously have given birth to at least one child;
(3) Undergo a medical evaluation related to the surrogacy arrangement by a licensed medical doctor and be deemed to be an appropriate person to serve as a surrogate;
(4) Undergo a mental health consultation by a licensed medical professional and be deemed to be an appropriate person to serve as a surrogate; and
(5) Have independent legal representation of her choice throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement.
(b) To execute a surrogacy agreement, each intended parent, whether or not genetically related to the child, must:
(1) Have attained 21 years of age;
(2) Undergo a medical evaluation related to the surrogacy arrangement by a licensed medical doctor and be deemed to be an appropriate person to serve as an intended parent;
(3) Undergo a mental health consultation by a licensed mental health professional and be deemed to be an appropriate person to serve as an intended parent; and
(4) Have independent legal representation of the intended parent's choice throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement.
§16-67-3. Requirements of gestational or genetic surrogacy agreements: process.
A surrogacy agreement shall be executed in compliance with the following rules:
(1) At least one party must be a resident of this state;
(2) A surrogate, surrogate’s spouse, if any, and each intended parent shall meet the requirements of this article;
(3) Each intended parent, the surrogate, and the surrogate's spouse, if any, must be parties to the agreement;
(4) The agreement shall be of record and signed by each party listed in this section;
(5) The surrogate, surrogate’s spouse, and each intended parent must acknowledge in a record receipt of a copy of the agreement;
(6) The signature of each party to the agreement must be attested to by a notary public;
(7) The surrogate and the intended parent or parents must have independent legal representation of their choice throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement, and each counsel must be identified in the surrogacy agreement;
(8) The intended parent or parents must pay for independent legal services for the surrogate; and
(9) The agreement must be executed before a medical procedure occurs related to the surrogacy agreement, other than the medical evaluation and mental health consultation required by §16-67-2.
§16-67-4. Requirements of gestational or genetic surrogacy agreements: content.
(a) A surrogacy agreement must comply with the following requirements:
(1) A surrogate agrees to attempt to become pregnant by means of assisted reproduction;
(2) Except as otherwise provided in this article, the surrogate and the surrogate's spouse or former spouse, if any, have no claim to parentage of a child conceived by assisted reproduction under the agreement;
(3) The surrogate's spouse, if any, must acknowledge and agree to comply with the obligations imposed on the surrogate by the agreement;
(4) Except as otherwise provided in this article, the intended parent or, if there are two intended parents, each parent jointly and severally, immediately on birth, will be the exclusive parent or parents of the child, regardless of the number of children born, the sex of the child or children, or the physical or medical condition of the child or children.
(5) Except as otherwise provided in this article, the intended parent or, if there are two intended parents, each parent jointly and severally, immediately on birth, will assume responsibility for the financial support of the child, regardless of the number of children born, or gender, or physical or medical condition of each child;
(6) The agreement must include information disclosing how each intended parent will cover the surrogacy-related expenses of the surrogate and the medical expenses of the child. If health care coverage is used to cover medical expenses, the disclosure must include a summary of the health care policy provisions related to coverage for surrogate pregnancy, including any possible liability of the surrogate, third-party liens, other insurance coverage, and any notice requirement that could affect coverage or liability of the surrogate. Unless the agreement expressly provides otherwise, the review and disclosure do not constitute legal advice. If the extent of coverage is uncertain, a statement of that fact is sufficient to comply with this subdivision;
(7) The agreement must permit the surrogate to make all health and welfare decisions regarding herself and the pregnancy consistent with West Virginia law, including, but not limited to, the provisions of §16-2R-1 et seq. of this code; and
(8) The agreement must include information about each party's rights or lack of rights under this article to terminate the surrogacy agreement.
(b) A surrogacy agreement may provide for:
(1) Payment of consideration and reasonable expenses; and
(2) Reimbursement of specific expenses if the agreement is terminated under this article.
(c) A right created under a surrogacy agreement is not assignable and there is not a third-party beneficiary of the agreement other than the child.
§16-67-5. Surrogacy agreement: Effect of subsequent change of marital status.
(a) Unless a surrogacy agreement expressly provides otherwise:
(1) The marriage of a surrogate after the agreement is signed by all parties does not affect the validity of the agreement, her spouse's consent to the agreement is not required, and her spouse is not a presumed parent of a child conceived by assisted reproduction under the agreement, unless such spouse was a party to the surrogacy agreement as an intended parent; and
(2) The divorce, dissolution, annulment, declaration of invalidity, legal separation, or separate maintenance of the surrogate after the agreement is signed by all parties does not affect the validity of the agreement.
(b) Unless a surrogacy agreement expressly provides otherwise:
(1) The marriage of an intended parent after the agreement is signed by all parties does not affect the validity of a surrogacy agreement, the consent of the spouse of the intended parent is not required, and the spouse of the intended parent is not, based on the agreement, a parent of a child conceived by assisted reproduction under the agreement, unless such spouse was a party to the surrogacy agreement as an intended parent; and
(2) The divorce, dissolution, annulment, declaration of invalidity, legal separation, or separate maintenance of an intended parent after the agreement is signed by all parties does not affect the validity of the agreement.
Unless the court orders otherwise, a petition and any other document related to a surrogacy agreement filed with the court under this article are not open to inspection by any individual other than the parties to the proceeding, a child conceived by assisted reproduction under the agreement, their attorneys, and the Vital Registration Office. A court may not authorize an individual not a party to the agreement to inspect a document related to the agreement unless disclosure is in the interests of justice. The individual seeking to inspect the document may be required to pay the expense of preparing a copy of the document to be inspected.
§16-67-7. Exclusive, Continuing Jurisdiction.
During the period after the execution of a surrogacy agreement until 90 days after the birth of a child conceived by assisted reproduction under the agreement, a court of this state conducting a proceeding under this article has exclusive, continuing jurisdiction over all matters arising out of the agreement. This section does not give the court jurisdiction over a child custody or child support proceeding if jurisdiction is not otherwise authorized by law of this state other than this article.
§16-67-8. Termination of gestational surrogacy agreement.
(a) A party to a gestational surrogacy agreement may terminate the agreement, at any time before an embryo transfer, by giving written notice of termination to all other parties. If an embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer.
(b) Unless a gestational surrogacy agreement provides otherwise, on termination of the agreement under this section, the parties are released from the agreement, except that each intended parent remains responsible for expenses that are reimbursable under the agreement and incurred by the gestational surrogate through the date of termination.
(c) Except in a case involving fraud, neither a gestational surrogate nor the surrogate's spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or liquidated damages, for terminating a gestational surrogacy agreement under this section.
§16-67-9. Parentage under gestational surrogacy agreement.
(a) Notwithstanding any other provision to the contrary, and except as otherwise provided in this article, on birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child.
(b) Except as otherwise provided in this article, neither a gestational surrogate nor the surrogate's spouse or former spouse, if any, is a parent of the child.
(c) If a child is alleged to be a genetic child of the woman who agreed to be a gestational surrogate, the court shall order genetic testing of the child. If the child is a genetic child of the woman who agreed to be a gestational surrogate, parentage must be determined based upon other provisions of applicable law and the agreement is deemed to be breached.
(d) Except as otherwise provided in this article, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a gestational surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent, and not the gestational surrogate and the surrogate's spouse or former spouse, if any, is a parent of the child, subject to any other claim of parentage.
§16-67-10. Gestational surrogacy agreement: parentage or deceased intended parent.
(a) §16-67-9 of this code applies to an intended parent even if the intended parent died during the period between the transfer of a gamete or embryo and the birth of the child;
(b) Except as provided otherwise in §16-67-9 of this code, an intended parent is not a parent of a child conceived by assisted reproduction under a gestational surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:
(1) The agreement provides otherwise; and
(2) The transfer of a gamete or embryo occurs not later than 36 months after the death of the intended parent, or the birth of the child occurs not later than 45 months after the death of the intended parent.
(a) Except as otherwise provided in this article before, on, or after the birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, a party to the agreement may commence a proceeding in the circuit courts of this state in the county where a gestational surrogate resides, or in the county where the medical facility that the gestational surrogate intends to deliver the child resides, for an order of judgement;
(1) Declaring that each intended parent is a parent of the child and ordering that parental rights and duties vest immediately on the birth of the child exclusively in each intended parent;
(2) Declaring that the gestational surrogate and the surrogate's spouse or former spouse, if any, are not the parents of the child;
(3) Designating the content of the birth record in accordance with §16-5-1 et seq. of this code and directing the Vital Registration Office to designate each intended parent as a parent of the child;
(4) To protect the privacy of the child and the parties, declaring the court record is not open to inspection, except as authorized under this article;
(5) If necessary, that the child be surrendered to the intended parent or parents; and
(6) For other relief the court determines necessary and proper.
(b) The court may issue an order of judgment under this section before the birth of the child. The court shall stay enforcement of the order or judgment until the birth of the child.
(c) Neither this state nor the Vital Registration Office is a necessary party to a proceeding under this section.
§16-67-12. Effect of gestational surrogacy agreement.
(a) A gestational surrogacy agreement that complies with the requirements of this article is enforceable by any party to the agreement.
(b) If a child was conceived by assisted reproduction under a gestational surrogacy agreement that does not comply with this article, the court shall determine the rights and duties of the parties to the agreement consistent with the intent of the parties at the time of execution of the agreement. Each party to the agreement, and any individual who at the time of the execution of the agreement was a spouse of a party to the agreement, has standing to maintain a proceeding to adjudicate an issue related to the enforcement of the agreement.
(c) Except as expressly provided in a gestational surrogacy agreement or this section, if the agreement is breached by the gestational surrogate or one or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.
(d) Specific performance is not a remedy available for breach by a gestational surrogate of a provision in the agreement that the gestational surrogate be impregnated or submit to a medical procedure.
(e) Except as otherwise provided in this section, if an intended parent is determined to be a parent of a child, specific performance is a remedy available for:
(1) Breach of the agreement by a gestational surrogate which prevents the intended parent from exercising, immediately on birth of the child, the full rights of parentage; or
(2) Breach by the intended parent which prevents the intended parent's acceptance, immediately on birth of the child conceived by assisted reproduction under the agreement, of the duties of parentage.
§16-67-13. Requirements to validate genetic surrogacy agreement.
(a) Except as otherwise provided in this article, to be enforceable, a genetic surrogacy agreement must be validated by a circuit court in the county where either the genetic surrogate resides, or alternatively in the county where the intended delivery hospital is located. A proceeding to validate the agreement must be commenced before assisted reproduction related to the surrogacy agreement.
(b) The court shall issue an order validating a genetic surrogacy agreement if the court finds that:
(1) The requirements of this article are satisfied; and
(2) All parties entered into the agreement voluntarily and understand its terms.
(c) An individual who terminates under this article a genetic surrogacy agreement shall file notice of the termination with the court. On receipt of the notice, the court shall vacate any order issued under this section. An individual who does not notify the court of the termination of the agreement is subject to sanctions.
(a) A party to a genetic surrogacy agreement may terminate the agreement as follows:
(1) An intended parent who is a party to the agreement may terminate the agreement at any time before a gamete or embryo transfer by giving notice of termination in writing to all parties. If a gamete or embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent gamete or embryo transfer. The notice of termination must be attested by a notarial officer or witness.
(2) A genetic surrogate who is a party to the agreement may withdraw consent to the agreement any time before 72 hours after the birth of a child conceived by assisted reproduction under the agreement. To withdraw consent, the genetic surrogate must execute a notice of termination in writing stating the surrogate's intent to terminate the agreement. The notice of termination must be attested by a notarial officer or witnesses and be delivered to each intended parent any time before 72 hours after the birth of the child.
(b) On termination of the genetic surrogacy agreement under this section, the parties are released from all obligations under the agreement except that each intended parent remains responsible for all expenses incurred by the surrogate through the date of termination which are reimbursable under the agreement. Unless the agreement provides otherwise, the surrogate is not entitled to any non-expense related compensation paid for serving as surrogate.
(c) Except in a case involving fraud, neither a genetic surrogate nor the surrogate's spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or liquidated damages, for terminating a genetic surrogacy agreement under this section.
§16-67-15. Parentage under validated genetic surrogacy agreement.
(a) Unless a genetic surrogate exercises the right under this article to terminate a genetic surrogacy agreement, each intended parent is a parent of a child conceived by assisted reproduction under an agreement validated under this article.
(b) Unless a genetic surrogate exercises the right under this article to terminate the genetic surrogacy agreement, on proof of a court order issued under this article validating the agreement, the court shall enter an order:
(1) Declaring that each intended parent is a parent of a child conceived by assisted reproduction under the agreement and ordering that parental rights and duties vest exclusively in each intended parent;
(2) Declaring that the genetic surrogate and the surrogate's spouse or former spouse, if any, are not parents of the child;
(3) Designating the contents of the birth certificate in accordance with §16-5-1 et seq. of this code, and directing the Vital Registration Office to designate each intended parent as a parent of the child;
(4) To protect the privacy of the child and the parties, declaring that this court record is not open to inspection except as provided in this article;
(5) If necessary, that the child be surrendered to the intended parent or parents; and
(6) Granting any other relief the court determines necessary and proper.
(c) If a genetic surrogate terminates a genetic surrogacy agreement under this article, parentage of the child conceived by assisted reproduction under the agreement must be determined by other provisions of applicable law.
(d) If a child born to a genetic surrogate is alleged to not have been conceived by assisted reproduction, the court shall order genetic testing to determine the genetic parentage of the child. If the child was not conceived by assisted reproduction, parentage must be determined under other provisions of applicable law. Unless the genetic surrogacy agreement provides otherwise, if the child was not conceived by assisted reproduction, the genetic surrogate is not entitled to any non-expense related to the compensation paid for serving as a genetic surrogate.
(e) Unless a genetic surrogate exercises the right under this article to terminate the genetic surrogacy agreement, if an intended parent fails to file a notice required under this article, the genetic surrogate or the Department of Health may file with the court, not later than 60 days after the birth of a child conceived by assisted reproduction under the agreement, notice that the child has been born to the genetic surrogate. Unless the genetic surrogate has properly exercised the right under this article to withdraw consent to the agreement, on proof of a court order issued under this article validating the agreement, the court shall order that each intended parent is a parent of the child.
(a) Except as otherwise provided in this article, on the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement, each intended parent is, by operation of law, a parent of the child, notwithstanding the death of an intended parent during the period between the transfer of a gamete or embryo and the birth of the child;
(b) Except as otherwise provided in this article, an intended parent is not a parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:
(1) The agreement provides otherwise; and
(2) The transfer of the gamete or embryo occurs not later than 36 months after the death of the intended parent, or the birth of the child occurs not later than 45 months after the death of the intended parent.
§16-67-17. Breach of genetic surrogacy agreement.
(a) Subject to the provisions of this article, if a genetic surrogacy agreement is breached by a genetic surrogate or one or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.
(b) Specific performance is not a remedy available for breach by a genetic surrogate of a requirement of a validated or non-validated genetic surrogacy agreement that the surrogate be impregnated or submit to a medical procedure.
(c) Except as otherwise provided in this section, specific performance is a remedy available for:
(1) Breach of a validated genetic surrogacy agreement by a genetic surrogate of a requirement which prevents an intended parent from exercising the full rights of parentage 72 hours after the birth of the child; or
(2) Breach by an intended parent which prevents the intended parent's acceptance of duties of parentage 72 hours after the birth of the child.
§16-67-18 Treatment of agreements entered into in other states.
Should a person who is a surrogate under an agreement entered into in another jurisdiction within the United States give birth to the child in this state, the law of the state in which the agreement was entered into shall apply.
§16-67-19 Prohibition against commercial surrogate brokering; exceptions; penalties.
(a) Any person or entity in this state acting as a commercial surrogate broker is guilty of a misdemeanor and upon conviction, shall be fined not more than $10,000 or confined in jail for not more than one year or both fined and confined.
(b) As used in this section "commercial surrogate broker" means a person, firm, corporation, partnership or other entity that accepts compensation for recruiting or procuring surrogates or which accepts compensation for otherwise arranging or inducing intended parents and surrogates to enter into surrogacy contracts or surrogacy agreements.
(c) The provisions of subsection (a) of this section do not apply to a surrogate seeking, accepting, or receiving compensation for acting as a surrogate, nor do they apply to an attorney representing a surrogate or intended parent in the surrogacy process.
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