A bill that would make Virginia's surrogacy statute gender neutral has passed through both chambers of the state's legislature, and is now awaiting Governor Northam's signature. The state's surrogacy law, as currently states, extends only to married heterosexual parents. The proposed change in HB 1979 will erase the words "father" and "mother" from the law.
Currently, Virginia has some of the most arcane restrictions on surrogacy in the country. The changes to modernize the state's surrogacy laws have long been championed by Del. Richard Sullivan, who was inspired to introduce legislation after learning of the legal troubles facing a gay couple, Jay Timmons and Rick Olson, in his district who formed their family in part through surrogacy. After learning that they would be unable to establish their parenting rights as a same-sex couple in Virginia, the couple worked with a surrogate in Wisconsin, where the experiences of gay men was more positive. However, a local judge ruled the couple as "human traffickers" and stripped them of their parental rights.
"To have an activist judge come in and completely ignore the Supreme Court of Wisconsin and judicial precedent was a vivid example of being treated differently," Timmons said in an article in Washington Blade. "No family should have to go through that type of mistreatment by the judicial system or frankly by anyone."
Inspired by their story, Del Sullivan introduced legislation to make it easier for gay couples to gain legal status as parents following a surrogacy journey. Though a vast improvement, however, it does not fix all the problems intended parents in Virginia may face. Couples forming their families via surrogacy are still unable to gain a "pre-birth parentage order," for instance, which allows intended parents to establish legal parenting rights before their surrogate gives birth. As it stands, surrogates have to sign away their rights after the birth of the child. Though unlikely, this could allow surrogate to complicate the process post birth.