What Do You Need to Know – Surrogacy in Texas

Texas Law

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 Texas Family Code requires that:

What is the Process?

Single Intended Parents, 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 or a single intended mother, 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 single intended parents and same sex couples that are married; however, some courts have been of the opinion that the statute does apply to same sex married couples and single intended parents as well as heterosexual couples.

Same Sex Non-Married Couples

Historically, for 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 parents will have genetic testing performed on the child, or children, and themselves to determine the biological connection between the child, or children, and the intended parents.  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