By Lauren Gaydos Duffer and Brenda F. Hasenzahl
Although struggles with conception and pregnancy are not new, the concept of surrogacy has become more widespread as celebrities such as Nicole Kidman, John Travolta, and Elton John have discussed their use of a surrogate to have a child. Age is considered a factor associated with fertility issues, and in today’s world, more women are having children at an older age than in years past. From 1970 until 2006, the number of women giving birth for the first time over the age of 35 has increased nearly 8 times. As many states have not kept up with the scientific advances of assisted reproduction and surrogacy, Texas is becoming known as one of the more ‘surrogacy friendly’ venues. However, there are still many misconceptions regarding the laws of surrogacy in Texas, and this article serves as a brief overview.
When the term ‘surrogacy’ is used, there are two general types: 1) traditional surrogacy, and the more common type, 2) gestational surrogacy.
In traditional surrogacy, a woman (the gestational mother) acts as both the egg donor and the surrogate. This practice is not recognized, codified, or protected in the Texas Family Code. Traditional surrogacy generally occurs when a couple who wants a child does not have viable eggs to fertilize, and requests a gestational mother to not only have the child, but also donate the egg needed. As the gestational mother is the biological mother of the child, if she is married during these proceedings, her husband is deemed the presumed father of the child. Due to these potential complicated legal risks, this method of surrogacy is not recognized in Texas.
The more common type of surrogacy, and the one recognized by Chapter 160 of the Texas Family Code, is gestational surrogacy. The gestational mother carries a fertilized embryo that is implanted in her by assisted reproduction. The embryo is comprised of either the intended mother’s egg, or a donor egg, and the intended father’s sperm, or donor sperm, and as such the child is not biologically related to the gestational mother or her husband.
Specifically, under Section 160.754, a prospective gestational mother, her husband if she is married, each donor and each intended parent may enter into a written agreement providing that the gestational mother agrees to pregnancy by means of assisted reproduction, and relinquishes all parental rights and duties to the child born as a result of the assisted reproductive procedure. This statute eliminates the need for legal proceeding filed after the birth of the child to terminate any parent-child relationship between the gestational mother and child. With a validated gestational agreement in place, once the child is born, the intended parents’ names are placed on the birth certificate, and they immediately become the legal parents of the child.
In order for a gestational agreement to be validated, Section 160.754 of the Texas Family Code requires that the intended parents be married to each other and that each intended parent be a party to the gestational agreement. The marriage requirement has sparked much debate among different counties throughout the State of Texas, as to whether or not the statute requires an intended parent to be married, or whether the statute implies only that if you are an intended parent who is married, then both you and your spouse must both be parties to the gestational agreement. To attempt to clarify this issue, the Texas legislature considered revising the gestational statute to apply to a single intended parent; however, the proposed revisions were not adopted.
In addition, pursuant to Section 160.754, the gestational agreement must require that the eggs used in the assisted reproductive procedure not come from the gestational mother, which signifies that traditional surrogacy is expressly not protected under the statute.
The gestational agreement must also contain language that the physician who is going to perform the assisted reproductive procedure inform the parties of the rate of successful conceptions and births attributable to procedure, the potential health risks associated with implementation and fertility drugs, expenses related to the procedure, and any reasonably foreseeable psychological effects resulting from the procedure. Much like the sixty day “cooling off” period required for finalizing a divorce, Section 160.754 of the Texas Family Code requires that the gestational agreement be entered into at least fourteen days prior to the date of the transfer of any eggs, sperm or embryos to the gestational mother for purposes of conception or implantation.
Finally, the gestational agreement may not limit the right of the gestational mother to make independent decisions to safeguard her health or the health of an embryo. Provided that the gestational agreement meets the requirements of Section 160.754 of the Texas Family Code, the parties then must obtain an order from the court validating the gestational agreement in order for the gestational agreement to be enforceable under the Texas law. This initial order validating the gestational agreement is often referred to by practitioners and medical professionals as the “pre-birth order.” The pre-birth order names the intended parents as the parents of any child born pursuant to the gestational agreement, orders that the intended parents shall be entitled to make all health care decisions regarding the child, orders any hospital or birthing center where the child is born to list the intended parents as the parents of the child on any birth certificate or vital records, and orders the Texas Bureau of Vital Statistics to issue an original birth certificate listing the intended parents as the parents of the child.
Upon the birth of the child, a Notice of Birth is filed with the Court, notifying the Court that a child was born pursuant to the gestational agreement. At the same time that the Notice of Birth is filed, an order confirming parentage is entered by the Court, which confirms the intended parents as the parents of the child and orders the gestational mother to turn the child over to the intended parents, if not already done.
Even though Texas is considered a “surrogacy friendly” state, there are still areas of surrogacy that are not addressed by the statute. It is anticipated that as this area of the law grows, so will the case law and further statutes helping to define this relatively new area.