This past week, a Virginia Judge entered an Order giving Full Faith and Credit to a Pre-Birth Order from Maryland for two same-sex fathers using a gestational carrier in Virginia. The Order directed the hospital to send in the Order along with the birth certificate application to place both fathers and not the gestational carrier on the child’s birth certificate. This is the second time a Virginia Court has recognized a same-sex couple’s Pre-Birth Order.
Petitions for pre-birth or post-birth orders include a request for judgment from the court declaring the Intended Parents are the legal parents, and an order instructing the hospital or state department of vital records to issue a birth certificate reflecting the same. Specifically, the court order should instruct the hospital to treat the Intended Parents as the child’s legal parents for security, access and custody purposes. Absent a pre-birth order declaring parentage, the Intended Parents may not have decision-making rights with regard to the child in the event of an emergency. In Maryland, a pre-birth order is required for any gestational carrier arrangement, including ones involving a single male parent or a same-sex couple.
Although two different Virginia Courts (Richmond and Chesterfield) have recognized such Pre-Birth Orders, the question still remains whether the Virginia Office of Vital Records will follow the Order without involving the Attorney General’s Office. In the case of two same-sex mothers, the Office of Vital Records ultimately issued the birth certificate without the Attorney General’s intervention and so there is hope that the same will follow for the fathers.
While there is no guarantee that every Virginia judge will follow suit, it is a positive step that two such judges in two different counties have done so already.