Assisted Reproduction Methods (ART) and Legal Implications in Texas

Texas reproductive ART

As a family law and reproductive lawyer, I enjoy being a resource for people who hope to become parents through surrogacy or want to help others become parents as a surrogate or through egg, sperm or embryo donation. If you’re like many of our clients at the Sisemore Law Firm, you may be unfamiliar with how assisted reproduction methods work, what types of assisted reproductive technology exist, and what legal protections the state of Texas allows and when.

To help you sort through the confusion, this blog will answer some frequently asked questions about assisted reproduction and related topics. I’ll also share some insight on how the process works from a legal perspective. As always, it’s important to speak with a licensed healthcare practitioner to learn about the risks involved with medical procedures, including assisted reproductive technology. You will find links to reputable medical resources throughout this article as well.

What is assisted reproduction?

In the state of Texas, the definition of assisted reproduction is relatively simple. Per Texas Family Code Sec. 160.102: “Assisted reproduction” means a method of causing pregnancy other than sexual intercourse,” which may include:

  • Intrauterine insemination;
  • Donation of eggs;
  • Donation of embryos;
  • In vitro fertilization and transfer of embryos; and
  • Intracytoplasmic sperm injection.

What is assisted reproductive technology?

While different organizations and institutions vary when it comes to their assisted reproductive technology definition, the definition used by the Centers for Disease Control and Prevention (CDC) is one that is commonly used in the United States. The CDC based its definition on the 1992 Fertility Clinic Success Rate and Certification Act (FCSRCA).

According to the definition published in the FCSRCA (the CDC’s definition), “Assisted reproductive technology (ART) includes all fertility treatments in which either eggs or embryos are handled. In general, ART procedures involve surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman.”

The CDC goes on to describe what assisted reproductive technology is NOT, stating, “They do NOT include treatments in which only sperm are handled (i.e., intrauterine—or artificial—insemination) or procedures in which a woman takes medicine only to stimulate egg production without the intention of having eggs retrieved.”

What types of assisted reproductive technology are available?

According to the Society for Assisted Reproductive Technology (SART), the 4 types of assisted reproductive technology include:

  • In vitro fertilization-embryo transfer (IVF-ET)
  • Gamete intrafallopian transfer (GIFT)
  • Zygote intrafallopian transfer (ZIFT)
  • Frozen embryo transfer (FET)

Per SART, in vitro fertilization-embryo transfer (IVF-ET) is by far the most common ART procedure performed, comprising approximately 99% of ART cycles. I can also confirm that the vast majority of the Sisemore Law Firm’s surrogacy clients use IVF-ET to accomplish pregnancy.

As the NewYork-Presbyterian Health System explains, GIFT and ZIFT forms of ART, while rarely utilized, may be used for patients with infertility issues involving “conditions that prevent the sperm and egg from traveling through a fallopian tube.” You can learn more about GIFT and ZIFT on NewYork-Presbyterian’s website, here.

How does in vitro fertilization (IVF-ET) work?

According to the Cleveland Clinic, IVF procedures are assisted reproduction methods that involve an egg being fertilized by sperm in a laboratory environment. During this complex procedure, the fertility specialist retrieves eggs from a woman’s ovaries and manually combines the eggs with the father’s or donor’s sperm for fertilization in the lab.

Once the egg is fertilized, it becomes an embryo. After several days, the fertility specialist will place the embryo in either the mother’s or the gestational carrier’s uterus. Once the embryo becomes implanted in the uterine wall, pregnancy is achieved. When multiple embryos are extracted (which is optimal), prospective parents often choose to freeze some of the embryos for later use, just in case initial attempts do not result in pregnancy.

There are a variety of reasons hopeful parents will consider IVF:

  • The couple is a same-sex couple or heterosexual couple using an egg donor, sperm donor or gestational surrogate to have a baby.
  • The mother has trouble conceiving due to advanced age.
  • Other fertility methods have failed.
  • Certain health conditions prevent the mother from conceiving, such as:
    • Endometriosis.
    • Polycystic ovary syndrome (PCOS) or other ovary issues.
    • Uterine fibroids or other issues with the uterus.
    • Blocked or damaged fallopian tubes.
  • Certain psychological conditions could make pregnancy emotionally difficult for the mother, so a gestational carrier will be used.
  • Father has a low sperm count or other sperm issues.
  • Either parent has a genetic problem they don’t want to pass down to their child.

If you’re considering surrogacy and/or IVF, you may want to check out our recent blog: Surrogacy vs IVF: How to Choose the Best Option for You

What is a donor pregnancy?

A donor pregnancy, or pregnancy by donor, is a pregnancy where someone donates eggs or sperm needed by another individual who wants to get pregnant. We are also seeing more couples donate their unused embryos to help other individuals or couples become parents.

If you live in Texas and plan to use an egg donor or sperm donor to achieve pregnancy—or be a donor yourself—it’s critical to know how the state of Texas defines donors. In order to qualify as a donor in Texas, you must give your genetic material to a licensed physician for someone else to use in assisted reproduction.

People who provide sperm for home insemination are not considered donors in Texas. The state would consider them to be the actual parent of the child because they didn’t provide their sperm to a licensed physician, which is what the Texas definition of donor requires. The definition of donor found in the Texas Family Code 160.102 reads as follows:

“Donor” means an individual who provides eggs or sperm to a licensed physician to be used for assisted reproduction, regardless of whether the eggs or sperm are provided for consideration.  The term does not include:

  1. A husband who provides sperm or a wife who provides eggs to be used for assisted reproduction by the wife;
  2. A woman who gives birth to a child by means of assisted reproduction; or
  3. An unmarried man who, with the intent to be the father of the resulting child, provides sperm to be used for assisted reproduction by an unmarried woman, as provided by Section 160.7031.

The importance of the donor definition came to light in a case decided in 2016, In the Interest of P.S., a Child. A woman became pregnant through home insemination with sperm donated by a man with whom she says she had an oral agreement, where they orally agreed he would be viewed as the donor, not the father. Such oral agreements are not enforceable in Texas, and the court formally acknowledged the parent-child relationship between the father and child. He was also granted visitation and required to pay child support. The woman was hoping her same-sex partner could adopt the child but being that the man was considered the father under Texas law, not a donor, he prevailed in this case.

This is one of the many reasons why it’s important to speak with a reproductive lawyer if you plan to use a donor to get pregnant or provide genetic material to help someone else get pregnant.

What is artificial fertilization?

Artificial fertilization is sometimes used interchangeably with IVF (combining eggs and sperm in a lab environment to create an embryo, then implanting the embryo in a woman’s uterus), as well as artificial insemination. (See above for more information on IVF.)

What is artificial insemination?

Artificial insemination is a procedure whereby sperm is introduced into a woman’s cervix (intracervical insemination, or ICI) or uterus (intrauterine insemination, or IUI) in an attempt to achieve pregnancy without sexual intercourse. ICI can be done in a doctor’s office or at home, while IUI is typically performed in a doctor’s office with sperm that has been specially treated, or “washed” to promote fertilization.

There are a number of reasons people might consider artificial insemination to get pregnant. Some reasons include:

  • The father may have issues with sperm production, movement, shape or volume.
  • Intended fathers who have had a vasectomy and don’t wish to undergo a sperm extraction procedure, may wish to undergo artificial insemination with donor sperm.
  • Intended fathers who are concerned about passing on a genetic disorder, may consider artificial insemination with donor sperm.
  • Single females and female same-sex couples may choose to undergo artificial insemination with donor sperm in order to get pregnant.

It’s important to note that artificial insemination of a surrogate is not protected under Texas law. This form of surrogacy—referred to as traditional surrogacy—can be risky because the surrogate would be genetically related to the child and would be able to assert her parental rights if she chose to.

Even if the intended father’s sperm was used, she would still be considered the child’s mother unless she formally agrees to terminate her parental rights. This would result in a shared custody situation that could be difficult to manage.

You can learn more about a surrogate’s parental rights here.

What assisted reproduction methods are used in gestational surrogacy?

With gestational surrogacy, the surrogate is not genetically related to a child she gives birth to. Consequently, gestational surrogates become pregnant through IVF, where a fertilized embryo is placed in her uterus. Using IVF, embryos can be created in a variety of ways for a gestational surrogacy.

For example, some male same-sex couple have embryos created with the sperm of both partners and donor eggs. Some of these couples have even been blessed with twins, where one child is genetically related to one father and the other child genetically related to the other father.

Heterosexual couples who choose to use a surrogate may use their own eggs and sperm to create embryos when the mother is unable to carry a child. It’s important to note here that Texas requires the intended mother in these situations to have a verifiable physical or psychological reason that precludes her from carrying a child. Texas law does not allow gestational surrogacy agreements based on vanity reasons alone, as some other states do.

Of course, embryos may also be created with one of the parent’s eggs or sperm, which are combined with donor sperm or eggs to create the embryos. The use of donor genetic material is often required by single individuals or when one of the intended parents isn’t able to contribute eggs or sperm of their own.

How can a reproductive lawyer help intended parents, surrogates and donors?

While the state of Texas is very forward-thinking when it comes to assisted reproduction and gestational surrogacy, the laws are complicated. A reproductive attorney can help you navigate the legal, financial and emotional risks involved with assisted reproduction methods and surrogacy. We highly recommend you review any contracts or legal agreements involving assisted reproductive technology, surrogacy and donation with an experienced reproductive lawyer.

At the Sisemore Law Firm, we are also happy to make recommendations if you are looking for a surrogacy agency or need help finding a licensed healthcare practitioner experienced in assisted reproductive technology. Most of all, we’re here to listen and answer your questions about reproductive law in Texas.

To schedule a confidential consultation with a reproductive lawyer at our firm, you can call the Sisemore Law Firm at (817) 336-4444 or connect with us online.

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