The decision to pursue parenthood through surrogacy is not one that most people take lightly and is often fraught with anxiety and apprehension. The situation can be incredibly complicated logistically, medically, and legally. When you are trying to focus on building your family, the last thing you need is anxiety over surrogacy laws in Texas. Our team at Terry & Roberts Law is here to help explain what you need to know.
What Is Surrogacy Under Texas Law?
Most of us have heard of a surrogate at some point, but the legal definition can vary from state to state. While some states provide little to no guidance on starting your family through surrogacy, Texas has clear guidelines on what is legally defined as a surrogate pregnancy and what is required to draft a legally enforceable agreement.
First, we have to understand some of the key terminology in the process according to the Texas Family Code, including:
- Gestational mother: This is the prospective individual who will act as the gestational carrier for an unrelated child.
- Intended parents: These are the individuals who agree to parent a child born to a gestational mother through assisted reproduction.
- Assisted reproduction: The parties will select a method to create a pregnancy without intercourse.
At its most basic form, a surrogate is an individual who carries a pregnancy only. This individual does not donate eggs and has no legal parental rights to the child.
Most often, the embryo is created through donated material from either intended parents or a third-party donor and those embryos are implanted into the surrogate.
The Role of a Gestational Agreement in Texas Surrogacy Laws
According to Texas Family Code 160.751, one condition of enforcing a surrogate contract legally is having a “gestational agreement.” This agreement outlines the necessary details and must be signed at least two weeks before the embryo transfer. This allows everyone to consider the agreement and change their minds if they want to, and provides time to get the necessary court approval.
Intended Parents
Intended parents are required to undergo a home study before approval. This generally includes visits to the home and interviews with an assessor to ensure the intended parents can provide a safe home for a child. Additionally, the intended parents must be married to each other.
Texas requires proof of medical necessity for legal surrogate agreements. This proof consists of documentation showing the intended mother is unable to carry a pregnancy to term or cannot do so without undue threats to physical or mental health.
Gestational Mother
The gestational mother should complete all medical evaluations to assess her ability to carry a pregnancy. In most cases, she must have also already had a successful pregnancy and delivery. Additionally, if she has a spouse, they must be included in the agreement for gestational surrogacy.
Agreement
To get Texas surrogacy court approval, the prospective surrogate, intended parents, and the gestational agreement must meet several criteria. Some of the components you can expect this agreement to have are:
- The name of the physician who will perform assisted reproduction procedures
- A statement of intention by the intended parents to become the legal parents of the child
- An agreement to exchange relevant health information for some time
- The requirement that eggs come from the intended mother or donor who is not the gestational mother
- An explanation of the potential risks of acting as a surrogate
- Recent data on success rates
- An adequate outline of all financial responsibilities
Understanding Traditional vs. Commercial Surrogacy
If you are exploring becoming or using a gestational surrogate, you must have adequate legal language in place to protect your interests and those of the child. Regarding an enforceable agreement, not all surrogate situations are the same. The two common types you may encounter in Texas are traditional and commercial surrogacy.
While commercial surrogacy outlines expectations and identifies the legal parents as the intended parents before embryo transfer, traditional surrogacy is more of an informal agreement between parties during the pregnancy and a legal adoption after birth. While this agreement may be ok in some situations, it fails to offer important protections or legal enforcement if the parties decide to back out.
The idea of “commercial” surrogacy may leave a bad taste for some people, but this is the only type of surrogate arrangement that offers enforceable protections for all parties.
Indicators of a Traditional Surrogate Agreement
Some of the flags for a ‘traditional’ surrogacy may include:
- Intended parents who do not go through an agency
- Intended parents do not plan to use their eggs or donor eggs, but yours
- Methods such as IUI or at-home insemination methods are intended to create the pregnancy instead of using a physician
Indicators of a Commercial Surrogacy
If you work through a reputable agency, you are likely entering into a commercial surrogacy. That is one that values the gestational surrogate’s time, energy, and resources and intends to compensate them for it. The gestational agreement will outline all of the factors that differentiate it from traditional surrogacy.
These factors include using eggs from the intended mother or another donor and establishing the parentage of the child and intended parents before birth. Additionally, this agreement should include base pay to compensate the gestational mother for the time, energy, and risks they undergo. It should also clearly state any other financial responsibilities.
Risks of Surrogacy
The risks of surrogacy are not insignificant, though they can be minimized when you work with a family law attorney who can help you develop a comprehensive gestational agreement. Some risks may be unique to traditional or gestational surrogacy models, but others are universal risks that anyone may face in their family planning journey.
Pregnancy Loss
The overall success rates for gestational surrogacy are high once the pregnancy takes. According to numbers from Texas clinics reported by the Centers for Disease Control and Prevention (CDC), facilities see deliveries in between 80% and 95% of pregnancies. However, pregnancy loss is still a real concern that can have devastating consequences for all parties. The intended parents have likely already invested thousands of dollars in the process that they will not get back, and pregnancy loss can be a difficult experience for the gestational carrier, both emotionally and physically.
Health Risks
The health risks to intended parents are minimal, though the intended mother may face challenges if she is providing the eggs for the pregnancy. The gestational carrier will face all of the common risks of pregnancy, including gestational diabetes, high blood pressure, bleeding issues, and maternal mortality.
Additional Risks in a Traditional Surrogacy
Most of the risks in commercial surrogacy surround financial risks and concerns of health complications, but traditional surrogacy provides many more legal risks. Legally, Texas treats traditional surrogacy as an adoption. The surrogate has provided her eggs and carried the child, making it her child by law.
This means that she must wait 48 hours before she can sign adoption papers to the intended parents, leaving time to change her mind. Similarly, the intended parents do not have obligations to the child before this happens, so they may change their mind, leaving the surrogate with legal responsibility for a child they did not intend to have.
Get Support in Your Surrogacy Journey From an Experienced Family Law Attorney
Surrogacy can be a complicated and challenging process. Trying to navigate Texas surrogacy laws can be an additional task that you don’t have to shoulder alone. If you are considering being part of a surrogacy journey, you need an experienced family law attorney to ensure your interests are protected. Call Terry & Roberts Law today for a consultation to discuss how we can best support you.