Your Virginia Hometown Lawyer

By: Sarah Saville

What does Pavan v. Smith mean for Virginia’s LGBTQ couples interested in utilizing a surrogate mother to start a family?

In Pavan, the United States Supreme Court reversed a decision out of Arkansas that refused to name a birth mother’s wife as a parent on a birth certificate. Arkansas law permits the naming of a birth mother’s husband as a parent on a birth certificate in cases of artificial insemination. The Pavan decision opens with “As this Court explained in Obergefell v. Hodges, 576 U. S. ___ (2015), the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’ Id., at ___ (slip op., at 23).” The Supreme Court went on to declare that a birth mother’s same-sex spouse may be named as a parent on a birth certificate when state law permits an opposite-sex spouse to be named in cases of artificial insemination. Read the full decision here.

Virginia’s Assisted Conception laws allow a woman and her husband to enter into a contract with a surrogate mother, and, if she is married, her husband. The Attorney General has stated that the written law should apply equally to same-sex couples, however, the General Assembly has never revised the law. This lack of revision has left many LGBTQ couples unsure if they will be able to enforce their parental rights under the law even if they are named on the birth certificate. Pavan reiterates that same-sex couples are entitled to all the same rights and responsibilities under the law as opposite-sex couples. This decision strengthens same-sex spouses’ right to enforce surrogacy contracts, and other rights and responsibilities of being a lawful parent, under Virginia’s Assisted Conception laws.