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Assisted-conception law unconstitutional

Virginia’s assisted-conception statute, which creates a presumption that a gestational mother’s husband is the father of the conceived child, is unconstitutional as written because it provides parental rights to husbands but not wives, the court held.

In 2006, Plaintiff Valerie Appel and Defendant Lynne Celia were joined by a civil union in Connecticut. In 2008, Celia gave birth to her biological child, Minor Child A, born through assisted conception. In 2010, their union was converted to a marriage by operation of Connecticut law. In 2012, Appel gave birth to her biological child, Minor Child B, born through assisted conception. Minor Children A and B were conceived using sperm from the same sample; thus, they are biologically related. However, neither was adopted by their biological mother’s spouse.

Appel now seeks a no-fault divorce in Virginia. She submitted a proposed final decree of divorce, which states that there were no children born or adopted of the marriage.

Celia contests entry of this proposed decree, arguing that there were two children born of the marriage. She contends that Minor Children A and B should be acknowledged as children born of the marriage in the divorce decree because they were born after the couple was joined by a civil union that later became a marriage by operation of law.

In resolving this issue, the court must address two matters of first impression in Virginia. First, should a child born through assisted conception to a woman in a same-sex marriage be considered “born of the parties” for purposes of a divorce decree? Second, should a child born through assisted conception to a woman in a same-sex marriage be considered “born of the parties” if the child was born while the couple was joined by a civil union but not a marriage? The court answers both questions affirmatively.

Assisted-conception statute

Virginia requires final divorce decrees to state whether there are any minor children “born of the parties.” If so, then the statutory waiting period – during which divorcing parties must live separately without interruption – is increased from six months to one year. Virginia is one of the only states in the country that requires a longer waiting period for a no-fault divorce involving minor children. The court infers that, in making this distinction, the General Assembly considered the impact of divorce on young children.

Whether a child born through assisted conception is “born of the parties” is ordinarily governed by Code § 20-158, which provides substantive and procedural rights to the husband of a gestational mother who conceives a child through assisted conception. Under the statute, the husband is deemed to be the child’s parent, unless he files a lawsuit and proves he did not consent to the assisted conception. In the context of a final decree of divorce, therefore, the child would be considered “born of the parties” (not born of the non-husband sperm donor) because the biological mother and her husband are both deemed to be the child’s parents.

After holding in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that the constitution requires same-sex couples to have the same marital rights, benefits, and responsibilities as heterosexual couples, the Supreme Court decided Pavan v. Smith, 137 S. Ct. 2075 (2017). Pavan concerned whose name should appear on a child’s birth certificate in Arkansas. State law provided: “If the [birth] mother was married at the time of either conception or birth … the name of [her] husband shall be entered on the certificate as the father of the child.” Pavan held that, following Obergefell, a gestational mother’s wife is entitled to the same recognition on a birth certificate that Arkansas law provided to a gestational mother’s husband. The state’s refusal to grant this amounted to a denial of access to the constellation of benefits that the state has linked to marriage.

The reasoning in Obergefell and Pavan makes clear that Code § 20-158 in its current form does not comply with constitutional requirements. The statute discriminates in conferring a statutory benefit of marriage solely on the basis of whether a spouse of a gestational mother is a husband or a wife: the husband becomes a parent; the wife does not.


Generally, the preferred judicial remedy is to extend benefits, rather than to nullify a statute. Although one option would be to declare the statute a nullity, this would deny all married couples and children the statute’s familial benefits. Current parent-child relationships protected by Virginia’s assisted conception statute could become subject to legal challenge. Moreover, it is not difficult to envision other types of litigation that may arise, such as challenges to child-support orders by non-biological fathers whose responsibilities are borne out of the statute.

The court finds that the appropriate remedy is to extend the benefits of Code § 20-158 to same-sex spouses of gestational mothers. Thus, consistent with the marital benefits bestowed upon the spouse of a gestational mother who conceives a child during the marriage, Celia is the parent of Minor Child B. Accordingly, Minor Child B shall be recognized as a child born of the parties in the final divorce decree.

Civil union

The remaining question is whether Child A is “born of the parties,” despite having been born while the parties were not married but joined in civil union. The Code does not define the phrase “born of the parties.” While it could be intended as synonymous with “born of the marriage,” it may be broader in scope. For example, under Code § 20-31.1 recognizes the legitimacy of children born to a couple before they are actually married. If the same couple were to later divorce, the plain meaning of the terms would suggest that the child was “born of the parties” for purposes of entering a final divorce decree.

In the absence of other guidance, and in recognition of the importance that the General Assembly places on minor children in its no-fault divorce statute, the court concludes that Minor Child A is born of the parties for the purpose of the final divorce decree.

This is a narrow ruling, and the court makes no determination as to the parental rights of the parties. The scenario is limited to a child of a gestational mother in a civil union, which later becomes a marriage by operation of law.

Appel v. Celia, Case No. CL-2017-11789, Feb. 8, 2018; Fairfax Cir. Ct. (Shannon). Stephanie Stinson for Plaintiff; Lynne Celia, Defendant pro se. VLW 018-8-011, 8 pp.

VLW 018-8-011