Texas Surrogacy Laws: A Deep Dive
At present, there is no dedicated legal framework for gestational or traditional surrogacy agreements in Texas. Surrogacy law in Texas primarily arises from court decisions and principles of contract, agency, and other areas of the law. The legal principles that are applied in surrogacy agreements broadly stem from two Texas statutes:
Section 160.754 of the Texas Family Code governs gestational agreements. It states that surrogate agreements are enforceable if:
- The birth mother has, effectively, no genetic connection to the baby (i.e., if she is the gestational carrier);
- It complies with the Health & Safety Code article prohibiting organ sales, the Penal Code article prohibiting trafficking of persons, or any other provision of the Texas Penal Code related to surrogacy;
- The surrogate did not receive compensation in exchange for her agreement to be a surrogate.
As a matter of practical concern, the surrogate must be able to afford her own medical expenses during the time of her pregnancy, as the surrogate’s health insurance may not cover unknown health issues that arise during the pregnancy, or may even automatically terminate the surrogate’s policy (as a result of her pregnancy or having a gestational carrier) .
There is a second much broader part of the Texas Family Code that applies to surrogate parents: Section 160.703. Unlike Section 160.754, it is applicable even when the intended parent(s) have a genetic relationship with the child. Section 160.703 only applies when the parties have an agreement that fulfills the requirements of Section 160.754. That second part of the Texas Family Code (Section 160.703) is applicable to, for example, surrogate agreements when one of the intended parents is the child’s genetic parent, but the surrogate has a stronger contractual (as opposed to legal) relationship with the child.
While it has a different application than Section 160.754, it is necessary for a comprehensive analysis of surrogacy agreements in Texas. Section 160.703 was enacted in the same legislation that added Section 160.754 to the Texas Family Code. Given the language, intent, and quality of State law involved, Section 160.703 may well apply to gestational agreements as well (and, in some cases, to traditional agreements).
Given the existence of two statutes that could apply in various contexts, it is essential that Courts understand intended parents and surrogate parents have effective legal assistance.
Is it Legal to be a Surrogate Mother in Texas?
Yes, surrogacy is legal in Texas. The Family Code gives authority to manage all aspects of a surrogate program—the medical, the financial and the legal—and there are Texas courts which have approved many hundreds of surrogacy contracts. Texas Family Code Chapter 160 governs the establishment of parentage of children conceived by agreement and gestated by assisted reproduction (the surrogate). Under Chapter 160, Texas law authorizes "gestational agreements", also called traditional or host surrogate contracts, as well as "auspicious agreements," where the surrogate’s egg is used for gestating a donor embryo.
To effectuate a surrogacy in Texas, it is necessary to establish parentage through the Texas courts. There are two options for doing this: 1) pre-birth Orders (also called "Pre-Birth Orders" or "Pre-Birth Parentage Orders"); and 2) post-birth Orders (also called "Post-Birth Orders" or "Final Decree of Parentage"). A Paternity Order, the Part B of this book, speaks to the establishment of parentage for cases not needed for Pre-Birth Orders and those Post-Birth Orders where Gestational Agreements were not entered into prior to the birth of the child.
Requirements for Surrogacy Agreements
A surrogacy contract must be signed by both the surrogate and the intended parents. While the law does not require that a surrogate have legal representation, the intended parents may not be able to pursue an enforceable contract if they do not have their own legal representation. In Texas, a surrogacy contract is enforceable only if it includes all of the following:
• A declaration of whether each party being represented by his/her attorney was informed of his/her rights with respect to the surrogate and whether he or she has knowingly, intelligently, and voluntarily waived those rights.
• A provision in which the surrogate voluntarily consents to bind herself to the contract even if the contract may be deemed unenforceable.
• A provision in which the surrogate voluntarily consents to undergo psychological screening.
• A provision in which the surrogate voluntarily consents to undergo medical testing.
• A provision in which the surrogate voluntarily consents to terminate the contract in the event of medical necessity or other additional grounds or term or termination of the contract.
• A requirement that the surrogate provide written medical history that is disclosed to the intended parents at a pre-implantation (pre-egg transfer) conference in which the medical history is discussed.
Note that for a surrogacy contract to be legally binding, it may not deviate from statutory provisions addressing the rights and obligations of the surrogate and intended parents.
Surrogacy Arrangements that are Allowed
Under Texas law, surrogacy is legally permitted through two methods: traditional surrogacy and gestational surrogacy. Traditionally a surrogate mother was a woman who used her own eggs to conceive and deliver a child for a couple. Today, surrogates usually do not also contribute an egg. In a gestational surrogacy, she carries a child that was conceived using the egg of another, either from the intended parent or from someone else.
Those types of surrogacy arrangements are further categorized by whether any of the parties are genetically related to the child. In a traditional surrogacy, the surrogate is also the biological mother of the baby. A gestational surrogacy will involve either a genetic contribution from one of the intended parents — if the intended mother is unable to produce an egg, someone else provides her egg to be fertilized with sperm from the intended father — and a surrogate who provides neither her egg nor her womb. If the intended mother cannot contribute an egg, and there is no other donor, the child will be biologically related to only the intended father. Using a donor egg results in a biological relationship with both the intended parents.
In addition to traditional and gestational surrogacy, some surrogacy arrangements can involve egg donors, sperm donors, or even, in some cases, a donor embryo. Whatever the circumstances that have brought you to think about embarking on a surrogacy journey, you will need to understand the process and what will be required of your family.
The Intended Parents and Your Surrogate
Surrogacy in Texas is the product of written agreements between the surrogate and intended parents specifically fulfilling their roles and responsibilities. In a surrogacy arrangement, the intended parents are the persons who plan to become the legal parents of a child born to the surrogate. The surrogate is the woman who will bear the child.
The intended parents often are listed as the legal parents in the agreement, so the surrogate needs to be willing to yield her parental rights under the law regarding the custody of the child or children born as a result of the surrogacy. They must be willing to "adopt" the child or children. The agreement is binding by Texas law if properly prepared .
The surrogate woman must live in the state where the conception is to occur or the birthing will take place, or she must intend to be permanently living in that state to complete the surrogacy process. The intended parents may be near or far, but the surrogate must remain in one place until the completion of her obligations in the surrogacy arrangement.
A surrogate may or may not be biologically related to the child. In some instances, the surrogate child may have some connection to either or both of the intended parents, through the use of an egg donor or sperm donor, or the surrogate and intendeds may share no biological relationship to the child being born.
Common Benefits and Challenges of Using a Gestational Carrier
If you are considering pursuing surrogacy, you should be aware of the potential challenges as well as the benefits of the process.
Emotional Challenges
Going through a surrogacy can be an emotionally stressful time for everyone involved. The intended parents face the emotional turmoil of uncertainty as they try to start a family. The surrogates can experience an emotional disconnect from the pregnancy process itself. This may lead to the surrogate being distant with the intended parents, which can be hurtful to all parties involved. The surrogate might also struggle emotionally when she is required to separate from the child once he or she is born.
Legal Challenges
Surrogacy in Texas is not as strictly regulated as it is in other states, such as California. However, procedural requirements dictate the legitimacy of the surrogacy process. In Texas, there are two types of surrogates: traditional surrogates and gestational surrogates. In both cases, the intended parents must sign a legal agreement with the surrogate before any action is taken. In some cases, Texas courts may even require surrogates and intended parents to go through background checks or psychological evaluations.
Benefits
One of the main benefits of surrogacy is that the intended parents will have children who share their own genetic traits. Surrogacy can also be a good option for couples who are physically unable to adopt children or become pregnant. In addition, the surrogacy process offers the intended parents a level of control over their families that other methods of conception do not.
Hiring an Attorney
In the realm of surrogacy, consulting experienced legal counsel is essential. The Texas Family Code does not provide a bright-line test guiding you on when a gestational carrier contract is enforceable or invalid. Laws regarding surrogacy vary widely between states , and there are limited resources in Texas to help you navigate the legal landscape of surrogacy. An experienced attorney may help provide assurance that your surrogacy arrangement complies with the law and will ultimately result in a child with legally-binding ties to his or her intended parents. A consultation with a legal professional is a critical step in the surrogacy process. In addition to receiving invaluable legal assistance during the surrogacy process, your attorney will also provide you with helpful resources.