Surrogacy in West Virginia: The Complete 2026 Guide

West Virginia is a state where the law is thin and the practice is real: a Charleston fertility clinic publicly serves intended parents using gestational carriers, while the Code says almost nothing about surrogacy. What it does say is worth knowing exactly.

One sentence in the criminal code is the whole statutory story. § 61-2-14h makes buying or selling a child a felony, and then excepts, at (e)(3), "fees and expenses included in any agreement in which a woman agrees to become a surrogate mother." That exception carries no gamete condition, no compensation cap and no residency requirement, and it is current law.

Three things it does not do, and they shape everything else:

• It does not make a surrogacy agreement enforceable.
• It does not say who the parents are. West Virginia has no parentage act for assisted reproduction; a 2024 bill that would have created one passed the Senate and died in the House.
• It does not reach the birth certificate. That runs through § 16-5-10(e), which presumes the woman who gives birth to be the mother "unless … determined by a court of competent jurisdiction prior to the filing of the certificate."

⭐ That last clause is the opening: the statute itself contemplates a court displacing the presumption before the certificate is filed.

⚠️ We found no source showing that door being used — or refused — for a carrier arrangement. So this page does not promise a pre-birth order; it tells you where the hook is and says plainly that using it is a question for West Virginia counsel, asked before matching.

Neighboring states have different case law and court practice — Pennsylvania, Ohio and Maryland are all within a few hours of most of West Virginia. ⚠️ None of the three should be described as a "statute state" without a current state-specific review; read each guide before drawing a comparison.

West Virginia has no surrogacy statute. What it has is one sentence in its criminal code that says surrogacy payments are not a crime, a birth-registration provision that leaves room for a court, and a single line of case law that went against the intended parent. Read all three together — separately, each one misleads.

The one provision that names surrogacy

It is in the criminal code, not the domestic-relations code. W. Va. Code § 61-2-14h, "Prohibition of purchase or sale of child," makes it a felony to give or receive money "in consideration for the recipient's locating, providing, or procuring a minor child for any purpose which entails a transfer of the legal or physical custody of the child" (subsections (a) and (b)) — and in the same section, subsection (e) provides that it "does not prohibit" surrogacy fees and expenses. The penalty for the offense is one to ten years, or up to a year in jail and a fine of $2,000 to $10,000 (subsection (c)); the exception is what keeps a surrogacy payment outside it.

Subsection (e) lists what the section does not prohibit — including, at (e)(3):

"Fees and expenses included in any agreement in which a woman agrees to become a surrogate mother."

⭐ That exception is broad on its face. It sets no gamete condition, no compensation cap, and no residency requirement, and it does not distinguish traditional from gestational surrogacy. The same subsection also permits reasonable and customary legal, medical, hospital or other expenses "incurred in connection with the pregnancy, birth, and adoption proceedings" (e)(2), and fees approved by a court (e)(4).

⚠️ But read what it is. It is an exception to a felony — it says these payments are not the crime. It does not make a surrogacy agreement enforceable, it does not say who the parents are, and it does not put anyone on a birth certificate. Those are three different questions, and West Virginia answers them differently.

⚠️ Check the citation on anything you read about West Virginia surrogacy. Almost every source cites § 48-22-803(e) — and that section is now marked simply "Repealed". The prohibition and its surrogacy exception were moved out of the domestic-relations code into the criminal code. A page citing § 48-22-803 is quoting repealed law.

No parentage statute — and one nearly passed

West Virginia has no Uniform Parentage Act, no assisted-reproduction statute and no gestational carrier act. Its parentage machinery is § 48-24-101, "Paternity proceedings" — a summary, equitable proceeding in family court that determines "the filial relationship … between a child and his or her putative father."

Two details matter for an assisted-reproduction family:

• Standing runs through fatherhood or custody. § 48-24-101(e) lets the action be brought by an unmarried woman with custody of a child she bore, a married woman with custody who alleges separation and that the respondent rather than her husband is the father, the State, a guardian, the child, "any person who is not the mother of the child but who has physical or legal custody," or "a man who believes he is the father of a child born out of wedlock." There is no maternity counterpart.
• ⚠️ The long-arm provision is written around intercourse. § 48-24-101(h): "A person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for a proceeding brought under this article with respect to a child who may have been conceived by that act." On its face it does not reach a child conceived by assisted reproduction.

In 2024 the Legislature came close to changing all of this: Senate Bill 575, the "Assisted Reproduction Act," would have created a full article governing gestational and genetic carrier agreements, eligibility, execution and parentage. It passed the Senate and died in the House. There is no such article in the Code today. Anything you read that describes a West Virginia surrogacy statute is describing a bill, not a law.

The birth certificate — where the real question sits

Two provisions, and they do different work.

Before the certificate is filed, § 16-5-10(e) governs:

"For the purposes of birth registration, the woman who gives birth to the child is presumed to be the mother, unless otherwise specifically provided by state law or determined by a court of competent jurisdiction prior to the filing of the certificate."

⭐ That is a presumption, not a rule, and the statute names its own way out: a determination by a court of competent jurisdiction, made before the certificate is filed. It is the hook a pre-birth parentage order would use.

⚠️ But a hook is not a practice. We found no West Virginia authority establishing that courts make such determinations for gestational carrier arrangements, and none establishing that they refuse. Whether a West Virginia court will make one in your case is a question for a West Virginia attorney, and it should be asked before matching, not after a positive pregnancy test.

After the fact, § 16-5-18 governs new certificates. Its routes are alternatives: either a certificate or order of adoption with the information needed to identify the original certificate, or a request based on evidence of legitimation, a court determination of paternity, or acknowledgment of paternity. Sections 16-5-16 and 16-5-17 supply the clerk-to-Registrar mechanics for the adoption and paternity routes.

⚠️ § 16-5-18 lists no maternity route and no parentage-order route. If a § 16-5-10(e) determination is not obtained before filing, the correction routes that remain are the adoption and paternity ones.

(A third provision, § 16-5-15, lets a circuit court make findings including "parentage" — but only where the Registrar has refused to file a certificate and the petition can allege that no certificate of birth can be found. It is a remedy for an unregistered birth. It is not a surrogacy route.)

The case law, and exactly how far it goes

A CourtListener search of West Virginia Supreme Court of Appeals and Intermediate Court of Appeals opinions on 17 August 2026 returned no decision containing the words "gestational carrier" and no decision citing § 61-2-14h. A search for "surrogacy" returned eleven decisions — and all eleven belong to a single dispute between the same two parties, running from 2019 to 2026, plus a malpractice action against the lawyers.

In that dispute, the Supreme Court of Appeals affirmed a family court's determination that the parties' purported gestational surrogacy agreement was unenforceable and that the woman who gave birth "is the legal mother of all four children." The intended parent had paid for the embryo implantation. He later tried repeatedly to have her removed from the birth certificates, and was ultimately adjudicated a vexatious litigant.

⚠️ Read the limits with the holding, because they are substantial:

• Every decision in the chain is a memorandum decision, which carries less weight in West Virginia than a signed opinion.
• The agreement dated from 2005, between two people who already had four children together — not an agency-brokered arrangement with independent counsel on both sides.
• The courts held that this agreement was unenforceable. No West Virginia decision announces a rule for surrogacy agreements as a class, and none construes § 61-2-14h.

What it fairly tells you is that West Virginia has no statutory framework to fall back on when a surrogacy arrangement is contested, and that when one was contested, the woman who gave birth remained the legal mother.

What this adds up to

• Paying a surrogate is expressly not a crime (§ 61-2-14h(e)(3)).
• Nothing in the Code establishes parentage in a surrogacy arrangement.
• § 16-5-10(e) leaves the door open for a court to displace the birth-mother presumption before the certificate is filed — and no source we located shows that door being used, or refused, for a carrier arrangement.
• No statute requires a written agreement, pre-transfer execution or independent counsel. Ivy requires all three regardless — in a state with no parentage statute and one adverse memorandum line, the contract and the court strategy are the whole protection.

General information, not legal advice. West Virginia has no surrogacy statute, and your agreement and parentage strategy should be handled by a licensed West Virginia attorney experienced in assisted reproduction.

⛔ The carrier's spouse — the provision most often missed

§ 16-5-10(f) is the subsection that decides who is entered as father:

"If the mother was married at the time of either conception or birth, or between conception and birth, the name of the most recent husband shall be entered on the certificate as the father of the child, unless: (1) Paternity has been determined otherwise by a court of competent jurisdiction … (2) Genetic testing shows that the alleged father is the biological father … [with] a statistical probability of paternity of more than 98 percent; or (3) the mother, her husband, and an alleged father acknowledge that the husband is not the biological father …"

⚠️ Read that against a married gestational carrier. On the face of the statute, her husband is entered as the father unless one of the three exceptions is used. ⭐ The three exceptions are also the practical routes: a court determination, genetic testing above 98 percent, or a set of notarized affidavits from the carrier, her husband and the intended father, each individually notarized.

⛔ This has to be planned before transfer, not at the hospital. Which route fits depends on whether the carrier is married, whether an intended father is genetically related, and what the delivering hospital and Vital Records will accept.

⚠️ Two more current provisions, neither of them a surrogacy route

§ 5-32-3, in force since 9 June 2025, supplies Code-wide definitions: "A 'mother' is a female parent of a child or children. A 'father' is a male parent of a child or children." § 5-32-8 governs sex-based vital-statistics collection. ⚠️ Neither creates a surrogacy or parentage procedure, but they are part of the current statutory picture and counsel should know they are there.

⚠️ And the correction framework is wider than § 16-5-18. § 16-5-25 governs correction and amendment of vital records generally, and legislative rule 64 CSR 32 contemplates court-ordered amendments not otherwise provided for. ⛔ Neither says that route establishes intended-mother status in a surrogacy case — do not treat it as a proven fallback — but the page should not say adoption and paternity are the only routes that remain.

⭐ The line runs to 2026, and the newest decision adds two things

Stephen U. v. State of West Virginia, No. 25-364, decided 28 July 2026 — a memorandum decision summarily affirming dismissal. It recites the whole chain: S.U. I (2019), S.U. II (2021), Adoption I (2021), In re The Children of S.U. v. C.J. (2021), In re S.U. (2022) and this one. ⚠️ So the range is 2019 to 2026, not 2021 to 2025, and it is one self-represented petitioner who "has repeatedly attempted to divest his children's mother, C.J., of custody … by arguing that C.J. was merely a gestational surrogate." The court: "We have continually upheld the mother's legal rights, concluding there was never a valid gestational surrogacy agreement … and emphasizing that C.J. is the legal mother of the children."

⭐ First new thing — § 16-5-10(e) has now survived a constitutional challenge. The petitioner argued its application violated due process and equal protection, because a birth certificate must be filed within seven days of the birth and that left him no adequate opportunity to rebut the maternity presumption. The circuit court held the section not unconstitutional as applied, and the Supreme Court of Appeals affirmed.

⭐ Second, and more useful to you — the presumption is rebuttable. Quoting S.U. I, the court noted the petitioner "failed to submit competent evidence to overcome the presumption set forth in West Virginia Code § 16-5-10(e) that 'the woman who gives birth to the child is presumed to be the mother.'" ⚠️ That is a finding about his evidence, not a holding that the presumption is irrebuttable. § 16-5-10(e) itself says "unless otherwise … determined by a court of competent jurisdiction prior to the filing of the certificate of birth." The seven-day filing window is the practical constraint — plan the court step around it.

No West Virginia surrogacy or assisted-reproduction statute exists to set eligibility rules for intended parents — so no age, marital, residency or citizenship condition comes from one. Nothing is set for you, so everything has to be built.

The criminal question is answered; your parentage is not. § 61-2-14h(e)(3) expressly excepts "fees and expenses included in any agreement in which a woman agrees to become a surrogate mother" from the child-purchase felony. That removes the criminal question — and nothing more. It creates no right to payment, no collection remedy and no escrow protection, and it leaves the parentage question entirely to your attorney and the court.

⚠️ Settle the parentage strategy before you match, not after transfer. § 16-5-10(e) presumes the woman who gives birth to be the mother unless a court of competent jurisdiction determines otherwise before the certificate is filed. Whether a West Virginia court will make that determination for a carrier arrangement is the single most important question in your case, and we found no published authority either way. Ask a West Virginia attorney first.

⚠️ If no order issues before filing, § 16-5-18's routes to a new certificate are adoption, legitimation and paternity — there is no maternity or parentage-order route. A genetic intended father has a possible path through § 48-24-101's paternity proceeding; an intended mother does not have a statutory counterpart.

The one contested case is worth knowing. West Virginia's only appellate surrogacy litigation ended with a purported gestational surrogacy agreement held unenforceable and the woman who gave birth held to be the legal mother. Those were memorandum decisions on a 2005 agreement between two people who already had four children together. No decision announces a rule for surrogacy agreements generally, but it is what the record shows when one is contested.

Insurance. We located no general fertility mandate in West Virginia. Its HMO Act (§ 33-25A-2) folds "infertility services" into "basic health care services" for HMO plans, without defining what that includes, and adds that the services "need not necessarily include all procedures or services offered by a service provider." Bills to require broader coverage were introduced in 2025 and 2026 and both died in committee. Read your own certificate of coverage.

Start with intended parents, or contact us — here we talk through the legal strategy first.

A West Virginia journey costs about what one costs elsewhere in the region. The state's law changes almost nothing about the total — with one exception at the very end.

Typical all-in ranges for an Ivy journey:

• Surrogacy only, embryos already created: $140,000–$150,000
• With IVF: $180,000–$190,000
• With IVF and egg donation: $210,000–$220,000+

Those cover agency fees, the surrogate's compensation and allowances, legal work for both sides, escrow administration, screening, insurance review and the court work. They do not cover an unusual medical course, and no honest estimate can.

⚠️ Budget more for legal work here than in a statute state. Nothing is standard-form: the agreement does work a statute does elsewhere, and the parentage strategy has to be built rather than filed on a template. Ask your West Virginia attorney for an estimate that reflects it.

What the statute says about money is favorable. § 61-2-14h(e)(3) excepts "fees and expenses included in any agreement in which a woman agrees to become a surrogate mother" from the child-purchase felony, and (e)(2) permits reasonable and customary legal, medical, hospital or other expenses "incurred in connection with the pregnancy, birth, and adoption proceedings". There is no statutory cap on what a surrogate may be paid.

⚠️ Escrow is discipline here, not a requirement. Some states require compensation to sit with an independent escrow agent before medications begin; West Virginia does not. Ivy uses one regardless — if you are comparing agencies here, ask each how funds are held.

Do not assume insurance moves the number. We located no general fertility mandate. The HMO Act lists "infertility services" within basic health care services for HMO plans only, but it does not define IVF or gestational-carrier coverage and expressly allows limits on which procedures are included (§ 33-25A-2). ⚠️ Coverage turns on the plan's evidence of coverage, exclusions and medical-necessity rules — and the intended parents' fertility coverage, the carrier's own pregnancy coverage, and her compensation are three separate things.

Birth certificates: $12 per copy, same-day walk-in in Charleston.

Contact us for a written breakdown against your own circumstances.

A West Virginia journey follows the standard gestational path. The legal steps are not set by statute, so your attorneys settle them at the front — and one has no guaranteed answer.

1. Application and matching. Application, records review, a call, then profiles and a decision on both sides.
2. ⚠️ Legal strategy, before matching. In a state with no parentage act, this comes first rather than after the contract. Both sides retain independent West Virginia counsel, and the intended parents' attorney answers one question up front: will a West Virginia court make a § 16-5-10(e) determination of maternity before the certificate is filed, and in which county? We found no published authority on it. If the answer is uncertain, you want that before you match, not after a transfer.
3. Screening. Clinic clearance for the carrier and a psychological consultation for both sides. Nothing in West Virginia law sets these; the clinic and Ivy do.
4. The agreement. ⚠️ No West Virginia statute requires any of this — Ivy does. In writing, signed before any transfer, with independent counsel on both sides. With no statute listing required terms, the contract carries the whole load — medical decision-making, insurance, lost wages, termination and reduction, breach, and what happens if the parentage route fails.
5. Escrow funded. West Virginia does not require it. Ivy funds an independent escrow arrangement before medications and disburses monthly from confirmation of fetal heartbeat, on the agreement’s schedule.
6. Transfer, heartbeat scan, prenatal care, with handoff to the carrier's local OB usually around 8–10 weeks. Delivery is normally near her home, at a hospital her OB practice delivers at.
7. The parentage step. If an order issues before the certificate is filed, § 16-5-10(e) is the provision it operates on. If it does not, § 16-5-18's remaining routes are adoption, legitimation and paternity — which is why step 2 matters so much.
8. Birth certificate. Certified copies come from the Vital Registration Office in Charleston — $12 per copy, same-day walk-in.

Apply as a surrogate or read the intended parents overview.

West Virginia puts your payment outside its child-purchase felony and leaves almost everything else to your contract — which is why your own attorney should read every line before you sign.

What the law gives you:

• Being paid is expressly not a crime. § 61-2-14h makes buying or selling a child a felony, then excepts at (e)(3) "fees and expenses included in any agreement in which a woman agrees to become a surrogate mother," and at (e)(2) reasonable and customary legal, medical, hospital or other expenses "incurred in connection with the pregnancy, birth, and adoption proceedings". The statute caps nothing.
• For birth registration, you are presumed the mother. § 16-5-10(e) provides that "for the purposes of birth registration" the woman who gives birth is presumed to be the mother, "unless otherwise specifically provided by state law or determined by a court of competent jurisdiction prior to the filing of the certificate." ⚠️ That is a registration rule, not a general declaration of legal motherhood, and what displaces it on the statute is state law or a court — not the agreement.

What the law does not give you, and your contract must:

• ⛔ Your medical care stays yours, and state law bounds it. No West Virginia statute assigns your health decisions to the intended parents, and no contract can. ⚠️ West Virginia also restricts abortion: § 16-2R-3 permits it only where a licensed medical professional reasonably judges the embryo or fetus nonviable, the pregnancy ectopic, or a medical emergency exists, with narrow further exceptions for sexual assault or incest that require a prior law-enforcement report. Discuss termination, selective reduction and prenatal testing with independent counsel and the clinic before treatment begins — the agreement records expectations, it does not override the law or your consent.
• ⚠️ No statutory medical decision-making protection. Some states reserve health decisions to the carrier; West Virginia does not. Your agreement is where those terms live — exams, monitoring, travel, bed rest, termination and reduction — so negotiate them before signing. ⚠️ How a West Virginia court would treat any particular clause is unsettled: the only located dispute held that agreement unenforceable, and no decision announces a rule either way.
• ⚠️ No statutory escrow requirement. Several states require compensation to sit with an independent escrow agent before medications begin; West Virginia does not. Ivy uses one and funds it beforehand — ask any agency here how your money is held, and get it in writing.
• ⚠️ No statutory insurance requirement. Nothing obliges the intended parents to buy or maintain coverage for you; your agreement has to say who pays for what, including complications and postpartum care.
• ⚠️ No statutory attorney-fee provision. Some states make the intended parents pay for your counsel on request; West Virginia does not — so make it a term of the agreement. Ivy pays for a surrogate's independent attorney; that is our practice, not the state's rule.

One case to know about. West Virginia's only appellate surrogacy litigation ended with the woman who gave birth held to be the legal mother and a purported gestational surrogacy agreement held unenforceable. Those were memorandum decisions on a 2005 agreement between two people who already had four children together. No decision announces a rule for surrogacy agreements generally, but the courts here take the birth-mother presumption seriously.

Ready when you are — apply here or read the compensation overview.

No West Virginia surrogacy or assisted-reproduction statute sets requirements for surrogates — there is none to do so, and we located no minimum age, prior-birth rule, evaluation requirement or residency condition anywhere we looked. Everything below comes from Ivy and the IVF clinic.

What Ivy asks:

• 20–36 years old at application
• At least one healthy full-term pregnancy, and currently raising that child
• BMI 32 or under
• No more than 2 C-sections and no more than 5 total deliveries — these are Ivy and IVF clinic screening criteria, not state law
• No smoking, vaping or THC for 6+ months, clinic-verified
• Financially stable and not receiving public assistance
• U.S. citizen or permanent resident, with a stable living situation

You may apply as early as 3 months postpartum after a vaginal delivery; recovery from a C-section takes longer.

What the clinic adds. A medical evaluation, records review and clearance from the treating IVF clinic, plus a psychological consultation. In a state with no statutory screening rules, the clinic's protocol is the screening standard, and it does not vary because West Virginia is silent.

⚠️ Where your case would belong in court is a real question here, and worth asking early. West Virginia's paternity statute, § 48-24-101, places proceedings in the family court of the county where the child resides, and its long-arm provision (subsection (h)) is written around a child "conceived by" sexual intercourse in the state — language that does not obviously reach assisted reproduction. Ask your attorney which court, in which county, before you match.

Not sure whether you qualify? The application takes about ten minutes and we will tell you honestly.

Base compensation for a first-time Ivy surrogate is $40,000. A second journey is $45,000–$50,000; a third or more is $55,000–$60,000, open to discussion beyond that for a proven surrogate.

With allowances and milestones, a full package generally runs $50,000–$100,000+ — a monthly allowance, maternity clothing, travel and childcare for appointments, lost wages where they apply, and milestone payments. Your package is written into the agreement before you sign.

⭐ West Virginia caps none of this. § 61-2-14h(e)(3) excepts "fees and expenses included in any agreement in which a woman agrees to become a surrogate mother" from the state's child-purchase felony, with no compensation limit and no conditions attached. Subsection (e)(2) separately permits reasonable and customary legal, medical, hospital or other expenses "incurred in connection with the pregnancy, birth, and adoption proceedings".

⚠️ But nothing in West Virginia law protects how your money is held. Several states require compensation to sit with an independent escrow agent before a carrier begins medications; West Virginia does not. Ivy uses one, funds it before medications begin, and disburses monthly from confirmation of fetal heartbeat, on your agreement schedule.

So make the escrow terms explicit, and ask your own attorney to confirm them. In a state that requires nothing, the agreement is where your protection has to be built — which is why Ivy pays for your independent attorney.

⚠️ Two more gaps your agreement must fill: the statute does not require the intended parents to carry or pay for your health coverage, and says nothing about complications or postpartum care. Put both in writing, with amounts and durations.

Full detail on how payments are structured is on the compensation page.

We verified each entry against its own website on 17 August 2026 rather than from a directory:

• West Virginia Fertility Institute — Charleston. ⭐ Its own site lists "Intended Parents Using Gestational Carriers" as a service line, alongside donor eggs, donor sperm and donated embryos, and offers IVF, PGT and IUI.
• WVU Obstetrics, Gynecology and Reproductive Sciences — Morgantown. The WVU School of Medicine department that houses the WVU Center for Reproductive Medicine, which WVU's own reporting describes as offering IVF since 2002. ⚠️ The Center's dedicated page could not be located at a working address when we checked; contact the department directly.

West Virginia sits within reach of Pittsburgh, Columbus and the Washington–Baltimore corridor, so cross-border care is ordinary — monitoring near home, transfer at a larger center. Ask any practice directly which parts of a gestational carrier cycle it performs on site.

These listings are informational, not endorsements, and not a complete list. Intended parents normally stay with the clinic holding their embryos — many Ivy journeys transfer embryos in from another state or from outside the US, and a West Virginia surrogate then receives care locally. If you already have a clinic, keep it.

Statute: there is no West Virginia surrogacy statute. What matters: § 61-2-14h (purchase or sale of a child — the felony, and the surrogacy exception at (e)(3)), § 16-5-10 (birth registration; the (e) presumption and its court-order carve-out), § 16-5-18 (new certificates), and § 48-24-101 (paternity proceedings, family court).

⚠️ § 48-22-803 is repealed. Nearly every source citing a West Virginia surrogacy carve-out cites that section; the prohibition and its exception now live at § 61-2-14h.

Legislation: SB 575 (2024), the "Assisted Reproduction Act," would have created a full surrogacy and parentage article; it passed the Senate and died in the House. Infertility-coverage bills HB 2824 (2025) and SB 107 (2026) both died in committee.

Case law: see the legal framework above for the search, its controls and its limits. In short: no decision contains "gestational carrier" or cites § 61-2-14h, and the eleven mentioning surrogacy are all one dispute.

Insurance: § 33-25A-2 includes undefined "infertility services" in the HMO Act's "basic health care services." No general fertility mandate was located.

Birth certificates: Vital Registration Office, 350 Capitol Street, Room 165, Charleston — $12 per copy, same-day walk-in; mail and VitalChek also available.

For Chinese intended parents: West Virginia falls in the consular district of the Chinese Embassy in Washington, D.C., not the New York Consulate-General.

Ivy: surrogate application · intended parents · compensation · contact us. Nearby: Pennsylvania · Ohio · Maryland.