The State of Texas has codified a statute that protects certain surrogacy arrangements. Pursuant to Chapter 160 of the Texas Family Code, a gestational surrogacy arrangement meets the requirements of the Texas Family Code if there is a written gestational agreement that sets forth that:
- The gestational mother agrees to pregnancy by assisted reproduction;
- The gestational mother, her husband, if married, each donor other than the intended parents relinquish all parental rights and duties with respect to the child;
- The intended parents will be the parents of the child;
- The physician who will perform the assisted reproductive procedure informed each party of: the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed; the potential for and risks associated with the implantation of multiple embryos and consequent multiple births; the nature of and expenses related to the procedure; the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures; and the reasonably foreseeable psychological effects resulting from the procedure; and
- The gestational mother and each intended parent agree to exchange throughout the entire term of the gestational agreement all relevant information regarding their health.
The Texas Family Code requires that:
- The intended parents be married to each other and each intended parent is a party to the gestational agreement;
- The eggs of the gestational mother can’t be used in the assisted reproductive procedure (i.e. the gestational mother can’t be genetic mother);
- The gestational agreement is signed before the 14th day preceding the date of the transfer; and
- The gestational agreement cannot limit the rights of the gestational mother to make decisions to safeguard her health or the health of an embryo.
What is the Process?
Same Sex Married Couples and Heterosexual Married Couples
The legal process consists of three steps. The first step is the preparation of, review and signing of the Gestational Agreement (a.k.a. the “Contract Phase”). The Gestational Agreement is the key to a successful surrogacy journey.
The second step is the validation phase (often referred to as obtaining the “pre-birth order”), which takes place prior to the birth of the child. For a heterosexual couple, an affidavit from a physician must be provided that sets out that the intended mother is unable to carry a pregnancy to term and give birth to a child or is unable to carry a pregnancy to term and give birth to a child without unreasonable risk to her physical or mental health or to the health of the unborn child.
The third step is the post-birth legal phase. The post-birth legal phase consists of filing a notice of birth with the court to let them know that a child, or children, were born pursuant to your Gestational Agreement and obtaining a second order that confirms you as the parents of the child or children.
Texas courts have issued varies opinions as to whether or not the statute applies to same sex couples that are married; however, some courts have been of the opinion that the statute does apply to same sex married couples as well as heterosexual couples.
Single Intended Parents and Same Sex Non-Married Couples
Currently, Texas law is unclear as to whether or not a single intended parent is protected under the gestational surrogacy statute in the Texas Family Code. Historically, for a single intended parent or a same sex non-married couple, the legal process consists of two or possibly three steps.
Similar to same sex married couples and heterosexual married couples, the first step is the preparation of, review and signing of the Gestational Agreement (a.k.a. the “Contract Phase”).
The second step is the establishment of parentage after the birth of the child or children. During the second step, the gestational mother and her husband, if any, will execute a relinquishment of parental rights to the child, or children, 48 hours or more after the birth. The intended parent(s) will have genetic testing performed on the child, or children, and themselves or self to determine the biological connection between the child, or children, and the intended parent(s). There will be a legal proceeding to terminate any parental rights the gestational mother and her husband, if any, have by virtue of giving birth to the child and ask the court to adjudicate the biological intended parent as the parent of the child or children by virtue of the genetic testing. For a same sex non-married couple, the second step may also include a request to the court to name the non-biological intended parent as a joint managing conservator of the child, or children, giving the non-biological intended parent the same rights as a legal parent.
For a same sex non-married couple, the third step may be for the non-biological intended parent to adopt the child, or children, by virtue of a second parent adoption. The second parent adoption cannot be finalized until the child, or children, have been in the care of the intended parents for at least six (6) months. In addition, a home study and criminal history check will be required.
Important Tips and Things to Keep in Mind
This is a “process”
Texas law requires that there is a minimum of fourteen (14) days between the date the last party signs the gestational agreement and the transfer. It is important that you allow enough time for the legal phase to be completed.
Don’t Wait Until the Last Minute
It is imperative that you contact your attorney before setting a medication start date and transfer date. You should allow no less than thirty days for the contract phase. Most clinics will not allow your gestational carrier to start her medications until you have provided a legal clearance letter from your attorney stating that the contract phase has been completed.
Communication is the Key to Success
Keep in contact with your attorney(s) and the agency throughout the process. We are not able to assist you if you do not keep us informed. Do not assume that someone else has already told your agency or your attorney(s) something. Also, be honest with your gestational carrier about your desires/wishes from the beginning. It is a waste of your time and money if you are not honest about your expectations with your gestational carrier.
Do not forget your Lawyers
It is imperative that our international intended parents have retained counsel in their home country as well. Each country has different laws in regards to citizenship and parental rights so it is important that you have an attorney in your home country who is advising your agency and your Texas attorney about what your home country may require/recognize in regards to establishing citizenship and parentage for the child, or children, in your home country. Do not assume that just because the Texas courts issue an order naming you as the parent(s) of the child, or children, that your home country will honor that order.