辅助生殖对弗吉尼亚州遗产规划和管理的影响- 2016年7月

随着辅助生殖技术的普及, 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, 弗吉尼亚州的法律并不总是这样. 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, “辅助受孕”是指任何介入的医疗技术导致的怀孕, whether in vivo or in vitro, 哪一种完全或部分地代替性交作为受孕的手段. 这种介入医疗技术包括, but is not limited to, conventional medical and surgical treatment as well as noncoital reproductive technology such as artificial insemination by donor, 配子和胚胎的低温保存, in vitro fertilization, uterine embryo lavage, embryo transfer, 配子输卵管内移植和输卵管下卵子移植.

对于辅助受孕的孩子来说，“谁是我的父母??是根据维吉尼亚法典各章节确定的. 这种亲子关系的确定将控制以下目的:

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和201为无遗嘱下降路线);

2. 遗嘱认证法的豁免、津贴和对父母遗产中的子女的其他保护(例如.g. 弗吉尼亚法典第64条规定的家庭津贴.第2-309条规定在弗吉尼亚州居住的个人死亡后, 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. 孕母是指生孩子的妇女, 不管她和孩子的遗传关系如何. 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用丈夫的精子使妻子的卵子受精后所生的孩子, with his consent, 丈夫和妻子所生的孩子是这样吗, 在紧接出生前的十个月内, 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), 无论另一个配子是否是该人配偶的配子, 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由妻子的卵子和丈夫的精子受精而生的孩子, with his consent, 丈夫和妻子所生的孩子是这样吗 either party filed for a divorce or annulment 在紧接出生前的十个月内. 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, 无论另一个配子是否是该人配偶的配子, 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, 写入是在植入之前还是之后执行的.

Surrogacy Contracts代理母亲是指任何成年妇女，她同意为预定的父母怀孩子. In Virginia, 意向父母指的是一男一女, 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, 受赠父母是任何孩子的父母. 弗吉尼亚的准父母指的是一男一女, 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. 如果法院撤销批准代孕合同的命令, then the surrogate is the mother of the resulting child and her husband is the father and 受赠父母只有通过收养才能获得父母权利.

Without Court Approval:根据适用的弗吉尼亚州法律，如果代孕合同没有得到法院的批准, 那么，除非受赠母亲是孩子的亲生母亲，否则她就是孩子的母亲, 在这种情况下，受赠母亲就是孩子的母亲. 如果受赠父母中的任何一方是所生孩子的遗传父母, 准父亲是孩子的父亲. 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, 那么代孕妈妈和她的丈夫就是孩子的父母. 如果双方都不是所生孩子的亲生父母, the surrogate is the mother and her husband is the child’s father if he is party to the contract; and, in such event, 受赠父母只有通过收养才能获得父母权利. However, after the signing and filing of the surrogate consent and report form in conformance with applicable Virginia law, 受赠父母是孩子的父母、代孕母亲和她的丈夫, if any, 不能做孩子的父母.

如果你或你的家庭成员有一个辅助受孕的孩子, 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，协助客户处理遗嘱、信托、遗产规划和管理的各个方面. 如有任何问题，请致电(757)490-6269或 jbooth@unioncountynjhomesforsale.com.