This comment examines whether gay men can have a child through a surrogacy arrangement in Virginia and whether gay men can retain parental rights through surrogacy contracts under the Virginia Assisted Conception Act. The Virginia laws affect gay males and gay females equally, but this comment addresses the issues arising with same-sex couples in the context of gay dads. Part II provides a background of surrogacy and specifically discusses surrogacy in relation to same-sex couples. Part III provides a general background of adoption and the establishment of parentage rights. Part IV describes the Assisted Conception Act, the legislative history of the Act, and its consequences on gay men. Part V discusses the January 2013 Supreme Court of Virginia decision, L.F. v. Breit. Part VI discusses how the holding in Breit and Virginia Code section 1-240 can and should be applied to homosexual couples in order to protect their fundamental constitutional rights. Part VII recommends that to protect these rights, Virginia should amend its definition of "intended parents" in Virginia Code section 20-156 to include gay parents and to allow for second-parent adoption.
Lauren Maxey, Two Dads Are Better Than One: The Supreme Court of Virginia's Decision in L.F. v. Breit and Why Virginia's Assisted Conception Statute Should Allow Gay Couples to Legally Parent a Child Together, 48 U. Rich. L. Rev. 1419-1451 (2014).