Assisted Reproduction's Impact on Estate Planning and Administration in Virginia - July 2016

With the availability of Assisted Reproductive Technology (ART), families who once may not have been able to become parents except through adoption are often able to conceive a child by non-traditional means. However, just because you, as a parent, consider a child born by use of ART to be your child in the same way you would consider a child born to you without the use of ART to be your child, Virginia law does not always agree. This Opinions and Observations column provides insight into how Virginia law defines familial relationships arising from ART and the resulting impact on estate planning and administration.

Sections 20-156 through 165 of the Virginia Code address the status of children of assisted conception in Virginia. In Virginia, “assisted conception” means a pregnancy resulting from any intervening medical technology, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. Such intervening medical technology includes, but is not limited to, conventional medical and surgical treatment as well as noncoital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization, uterine embryo lavage, embryo transfer, gamete intrafallopian tube transfer and low tubal ovum transfer.

For children of assisted conception, the legal answer to the question “Who are my parents?” is determined under these Virginia Code Sections. This determination of parentage will control for purposes of:

1. Intestate succession (i.e. who are the beneficiaries (heirs at law) of a deceased individual’s estate when he or she dies without a Will; see Virginia Code § 64.2-200 and 201 for the intestate course of descent);

2. Probate law exemptions, allowances and other protections for children in a parent’s estate (e.g. the family allowance under Virginia Code § 64.2-309 which provides that upon the death of an individual domiciled in Virginia, the deceased individual’s surviving spouse and minor children to whom he or she was obligated to support are entitled to a reasonable money allowance out of the estate for their maintenance during the period of the estate administration); and

3. Determining the eligibility of a child or the child’s descendants to share in a donative transfer from any person as an individual or as a member of a class determined by reference to the relationship.

However, it is important to note that in Virginia a child born more than ten months after the death of a parent shall not be recognized as such parent’s child for purposes of 1, 2 and 3 above.

General Rule: The general rule in Virginia declares that the gestational mother of a child resulting from the performance of assisted conception is the child’s mother and the husband of the gestational mother is the child’s father. A gestational mother is the woman who gives birth to a child, regardless of her genetic relationship to the child. A donor (i.e. an individual, other than a surrogate, who contributes the sperm or egg used in assisted conception) is not the parent of a child conceived through assisted conception unless the donor is the husband of the gestational mother.

Death: A child born following insemination of a wife’s ovum using her husband’s sperm, with his consent, is the child of the husband and wife notwithstanding that, during the ten-month period immediately preceding the birth, either party died. However, in Virginia, any person who dies before in utero implantation of an embryo resulting from the union of his sperm or her ovum with another gamete (defined as a sperm or ovum), whether or not the other gamete is that of the person’s spouse, is not the parent of any resulting child unless (1) implantation occurs before notice of the death can reasonably be communicated to the physician performing the procedure or (2) the person consents to be a parent in writing executed before the implantation.

Divorce: Any child resulting from insemination of a wife’s ovum using her husband’s sperm, with his consent, is the child of the husband and wife notwithstanding that either party filed for a divorce or annulment during the ten-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 his sperm or her 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 (1) implantation occurs before notice of the filing can reasonably be communicated to the physician performing the procedure or (2) the person consents in writing to be a parent, whether the writing was executed before or after the implantation.

Surrogacy Contracts: A surrogate means any adult woman who agrees to bear a child carried for intended parents. In Virginia, intended parents means a man and a woman, married to each other, who enter into an agreement with a surrogate under the terms of which they will be the parents of any child born to the surrogate through assisted conception regardless of the genetic relationships between the intended parents, the surrogate and the child. It is outside the scope of this Opinion and Observation to discuss the obvious impact Virginia law has on same-sex couples due to its narrow definition of intended parents to include only a man and a woman married to each other.

With Court Approval: After approval of a surrogacy contract by the court and entry of an order in accordance with applicable Virginia law, the intended parents are the parents of any resulting child. Intended parents in Virginia means a man and a woman, married to each other, who enter into an agreement with a surrogate under the terms of which they will be the parents of any child born to the surrogate through assisted conception regardless of the genetic relationships between the intended parents, the surrogate, and the child. If the court vacates the order approving the surrogacy contract, then the surrogate is the mother of the resulting child and her husband is the father and the intended parents may only obtain parental rights through adoption.

Without Court Approval: If a surrogacy contract has not been approved by a court in accordance with applicable Virginia law, then 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. If either of the intended parents is a genetic parent of the resulting child, the intended father is the child’s father. However, if (1) the surrogate is married; (2) her husband is a party to the surrogacy contract; and (3) the surrogate exercises her right to retain custody and parental rights to the resulting child in accordance with applicable Virginia law, then the surrogate and her husband are the parents. If neither of the intended parents is a genetic parent of the resulting child, the surrogate is the mother and her husband is the child’s father if he is party to the contract; and, in such event, the intended parents may only obtain parental rights through adoption. However, after the signing and filing of the surrogate consent and report form in conformance with applicable Virginia law, the intended parents are the parents of the child and the surrogate and her husband, if any, shall not be the parents of the child.

If you or a family member has a child born from assisted conception, you should share this information with your estate planning attorney in order to make sure that your estate planning documents (such as your Will or Revocable Trust) appropriately define terms such as children and descendants to include children born from assisted conception. Every estate plan is unique and each client deserves personal attention to details such as those addressed in this Opinions and Observations column to insure that the client has a comprehensive and tailored estate plan.

Pender and Coward attorney, Jessica Booth, assists clients with all aspects of wills, trusts, estate planning and administration. Please contact her with questions at (757) 490-6269 or jbooth@pendercoward.com.