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Surrogacy in Texas
Surrogacy agreements are heavily regulated by Texas law, which explicitly allows gestational surrogacy (in which the surrogate mother is not the biological contributor of the egg) agreements.
In Texas, surrogacy law requires the intended parents to be married to each other and that a surrogacy agreement is validated by a court. Surrogacy Agreements not validated by a court are not enforceable.
Gestational Surrogacy Arrangements
Texas has had egg donor (and sperm donor) laws for many years. In 2003, the Texas legislature added laws governing surrogacy, also known as gestational arrangements. Gestational arrangements and agreements, along with egg donor agreements, fall within the purview of Assisted Reproductive Technology law (ART).
There are now Texas legal guidelines on what gestational agreements should contain so that a Texas court can recognize and ratify them. This ensures that the intended parents are also the legal parents of the child, and provides for the legal parents’ names on the child’s birth certificate.
Under Texas surrogacy law, the married intended parents, not the gestational mother, are the legal parents of a child born to a surrogate mother if all parties entered into a validated gestational agreement at least 14 days before the embryo is transferred to the surrogate mother.
Texas surrogacy law allows the intended parents to use their own genetic material or the sperm or egg may come from a donor. However, Traditional Surrogacies (where a surrogate mother uses her own eggs) are not supported.
In Texas law, validated “gestational agreements” between Intended Parents (IPs) and gestational mothers have several advantages including:
- Gestational agreements are valid and enforceable in Texas
- The surrogate may be compensated
- Intended parents (IPs) are recognized as the legal parents of the child on his or her birth certificate
- There is no need for an adoption or secondary legal work
- Married couples who do not live in Texas may take advantage of the Texas law if their surrogate lives here
- The law supports gestational surrogacies regardless of whether both IPs, one IP, or neither IP, have a genetic relationship to the child
There are a few criteria set by the courts that couples must meet prior to any agreement being validated and prior to any embryo transfer. To meet Texas law, a surrogacy contract or “gestational agreement” must contain certain provisions before a Texas court will validate it. The most important are:
- All parties must sign the agreement at least 14 days before the embryo transfer; and
- A doctor must certify the medical necessity of the arrangement.
A surrogacy attorney will assist in obtaining a doctor’s affidavit. Medical necessity can be related to:
- Intended Mother is unable to carry and/or deliver a child
- Intended Mother or Intended Father have medical issues which prevent a safe normal conception of pregnancy
- The pregnancy would pose an unreasonable risk to the Intended Mother’s physical and/or mental health or to the health of the baby
- The gestational carrier must have had at least one previous pregnancy and delivery
- A home study may be, but is usually not, required
- The agreement must provide for the safety and health of the child and surrogate carrier
- The agreement must contain disclosures to insure full knowledge of medical risks
Egg Donation Contracts
Texas has had egg donor (and sperm donor) laws for many years. These laws cover all arrangements where sperm, eggs and embryos are donated by a third party and transferred to an intended mother or gestational surrogate who will carry and give birth to the resulting child. These laws state the donating party gives up all rights and obligations to any future created children from their genetic material and there is no need for court validation or adoption procedures.
Our Experienced Surrogacy Lawyers are available 24 hours a day, 7 days a week for a free, no-obligation case evaluation.
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