Legal Status of Surrogacy in Texas
Author: Gregory E. Stern, Esq.
I. INTRODUCTION
With laws providing both legal certainty and protection to the parties, Texas is one of the best jurisdictions in the U.S. for all types of assisted reproduction. Expanding on laws authorizing sperm, egg and embryo donor arrangements, Texas recently enacted highly favorable legislation dealing with surrogacy (ìgestational arrangementsî). Qualifying court-approved gestational arrangements in Texas will now be enforceable, even if the intended parents compensate the gestational mother for her services.
II. SPERM, EGG OR EMBRYO DONATION
In these arrangements, sperm, eggs or embryos donated by a third party to the intended parents are used in assisted reproduction to create a child that the intended mother will carry. Under Texas law, with the proper consents any such donors (sperm, egg, or embryo) are not treated as the legal parents of any resulting child. The intended mother becomes the legal mother of the child upon birth without any court involvement or the need for an adoption. The intended father also automatically becomes the legal father of the child so long as he has consented to the assisted reproduction in a signed ìrecordî.
III. GESTATIONAL ARRANGEMENTS
Effective September 1, 2003, court-approved ìgestational agreementsî between intended parents and gestational mothers are enforceable in Texas, even if the gestational mother is compensated. If they meet the statutory requirements and obtain court approval of their agreement, the intended parents will be recognized as the legal parents of the child upon birth without the need for an adoption. The names of the intended parents will go directly onto the birth certificate.
Gestational agreements can cover a wide range of situations. The most common arrangement would be one in which the gestational mother carries a child that is biologically related to one or both of the intended parents. But a gestational agreement in Texas can also involve arrangements where there is no biological connection between either of the intended parents and the unborn child. This would occur where both an egg donor and sperm donor are used. Thus, married couples can now have legal certainty in their arrangements in Texas regardless of the nature and extent of their infertility.
The gestational agreement must be signed by all parties at least 14 days before the date of the embryo transfer to the gestational mother and must be approved by the court. For the court to approve the agreement, the intended parents must be married to each other and the court must find that:
- The intended mother is unable to carry a pregnancy to term and give birth without unreasonable risk to her physical or mental health or to the health of the child
- The gestational mother has had at least one previous pregnancy and delivery and carrying another pregnancy to term and giving birth would not pose an unreasonable risk to the childís health or to her physical or mental health
- The gestational motherís eggs were not used in the procedure and
- Unless waived by the court, the intended parents have undergone a home study
The agreement must also contain various other provisions and physician disclosures designed to ensure that all parties have full knowledge of the arrangement and its risks. These include safeguards for the health of the gestational mother and responsibility for expenses associated with the pregnancy. Although there are residency requirements, these can be satisfied by either the gestational mother or the intended parents. This means that intended parents who are not Texas residents can obtain court approval for their gestational agreement so long as their gestational mother resides in Texas.
Agreements not qualifying as ìgestational agreementsî are unenforceable but not illegal. In these situations, the relationship between the parties and the child will be determined under general Texas family law.
NOTE: This overview is for general information purposes only and is not intended to be an exhaustive review of the legal considerations involved in surrogacy or assisted reproduction. It is based upon Texas statutes and judicial decisions in effect as of the date written, all of which are subject to change or further interpretation by the courts. Because individual circumstances may differ, those interested in pursuing surrogacy or assisted reproduction in Texas are strongly urged to work under legal supervision. By making this information available, the author is not establishing an attorney-client relationship with any persons reviewing this information.
DATED: August 6, 2003Gregory E. Stern
Attorney at Law
10777 Westheimer, Suite 350
Houston, Texas 77042-3457
(713) 785-1037
email: greg@ssa-agency.com
August 2003
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