Using a surrogate mother to have a baby has become increasingly more common over the past couple of decades since I began practicing family law. Serving as a reproductive lawyer for intended parents, surrogates and donors of eggs, embryos and sperm has been a very rewarding part of my career. Understanding the rights of surrogate mother, intended parents and donors is critical for anyone contemplating surrogacy.
A surrogate mothers rights and when can a surrogate mother keep the baby will vary depending on several factors. Considerations of key importance regarding when can a surrogate keep the baby include:
- Whether or not the child is biologically hers.
- What the surrogacy laws do and do not allow, if such laws even exist, in the state where the baby is born.
- What legal steps the intended parents and other parties involved with the surrogacy take prior to and after the birth.
When does a surrogate mother have rights to the child?
In order to understand when do surrogates have parental rights, we should first review the differences between the two common types of surrogacy and how that affects a surrogate mothers rights. In the state of Texas, we have gestational surrogacy, which is protected by surrogacy laws in the state, and we also have traditional surrogacy, which is not protected by Texas surrogacy laws.
Surrogacy laws do vary from state to state, so it’s important to work with a reproductive lawyer who knows how the laws work in different states, especially the state where they baby will be born.
What is gestational surrogacy in Texas? Gestational surrogacy refers to a pregnancy where a gestational carrier carries a baby who is not genetically related to her. The pregnancy is achieved through assisted reproduction, where a fertilized egg is implanted into the carrier’s uterus via in vitro fertilization (IVF).
Can a surrogate mother keep the baby if it’s not biologically hers? Not if the baby is born in the state of Texas, and the intended parents have taken the proper legal steps to execute a Texas gestational agreement in accordance with Texas surrogacy laws. If the surrogate has the baby in a different state, the intended parents could face some challenges, which I’ll elaborate on later.
What is traditional surrogacy in Texas? With a traditional surrogacy, the mother is in fact the biological mother of the baby. Do surrogates have rights to the baby when they are the biological mother? Yes. The surrogate mother in a traditional surrogacy would need to formally agree to relinquish her parental rights and allow the intended parents to adopt the baby.
Consequently, intended parents who choose to go the traditional surrogacy route are taking a big risk. Should the surrogate, AKA biological mom, decide to keep the baby, the intended parents may end up sharing visitation and paying child support. They will be eternally connected with the bio-mom, whether they like it or not.
Does a surrogate mother have rights to the child at all, once she formally relinquishes parental rights? No, she does not. Relinquishing parental rights is permanent in Texas, and the adoptive parents will be the legal parents of the child moving forward. She would no longer have any legal standing to even file a lawsuit pertaining to the child.
What do intended parents need to do to ensure the surrogacy process goes smoothly?
If you are considering gestational surrogacy in Texas and want to ensure the question of “do surrogates have parental rights?” doesn’t become an issue in your case, your first step should be to find an experienced reproductive lawyer. Surrogacy shouldn’t be taken lightly or handled without the guidance of an attorney who has extensive experience navigating the ins and outs of surrogacy law, which again, varies widely from state to state.
If you decide to enlist a surrogacy agency to help get the ball rolling, you’ll also want to do your research to make sure the agency is legit. (Your reproductive attorney can recommend reputable surrogacy agencies in your area.) Before you sign any contracts with a surrogacy agency, be sure to have a reproductive lawyer review them first.
Once you’ve identified a surrogate—either through an agency or on your own—you should work with your attorney to draft a gestational agreement that will be agreeable to both you and the surrogate. Gestational agreements are very complex and need to be written in accordance with Texas surrogacy statutes in order to be valid, so I do not recommend trying to tackle surrogacy or a gestational agreement on your own.
Once you and the gestational surrogate agree to terms and sign off on the gestational agreement, the attorneys will send a letter advising the surrogacy agency (or IVF physician in a private arrangement) that a contract has been finalized.
Unlike some states, Texas does allow parents to get a pre-birth order that names the intended parents as the legal parents. While most parents will wait until pregnancy is achieved before taking this step, it is an important one. The state of Texas won’t recognize a gestational agreement as valid until the court issues an order declaring parentage.
Once the baby is born, a birth notice will be filed, and your attorney can then ask the court to issue a second order to reconfirm the intended parent/s are the legal parents to any child born pursuant to the gestational agreement. The surrogate is then legally required to hand over the baby to the legal parents. If the surrogacy mother keeps baby, the court can order her to relinquish the child immediately.
To take a deeper dive into the surrogacy process, check out our recent blog: How does surrogacy work?
What if the baby isn’t born in Texas? Do surrogates have parental rights in other states?
This is an important question to discuss with your attorney because some states don’t recognize surrogacy orders from other states, while other states have declared certain types of surrogacy to be illegal. If your surrogate decides to have her baby in one of those states, that could end up being a problem for you.
While the likelihood that surrogacy mother keeps baby is extremely unlikely, it can happen. The risk of a gestational surrogate trying to exert surrogate mothers rights increases exponentially if you don’t seek guidance from an experienced reproductive lawyer.
For example, there was a case where the parties tried to handle a surrogacy arrangement without using attorneys. The intention was that the surrogate would act as a gestational carrier, though the parties didn’t bother to get a gestational agreement. To make matters worse, the doctor performed the IVF procedure without knowing whether or not there was a contract in place, something IVF physicians in Texas generally won’t do.
The assumed gestational carrier then decided she wanted to keep the baby, even though the baby was in no way genetically related to her. She moved to Michigan, which only allows altruistic surrogacy (being a surrogate out of the goodness of your heart), gave birth to the baby there, and she won the case. The biological parents ended up being forced to share visitation of their biological child with the woman. So, can a surrogate mother keep the baby USA? In this case, yes.
Had the biological parents consulted a knowledgeable reproductive attorney and executed a proper gestational agreement, they could have reduced the risk of the rights of surrogate mother even becoming an issue. Experienced surrogacy lawyers know what challenges intended parents face, how the surrogacy laws work in other states and the correct process to follow to ensure the rights of all parties involved are protected in accordance with Texas law.
We can answer your questions about surrogacy and donation in Texas
“Do surrogates have parental rights?” is an important question to discuss with a knowledgeable and experienced reproductive lawyer. The reproductive attorneys at the Sisemore Law Firm have been helping parents grow their families through surrogacy for years and also provide legal guidance for surrogates and individuals interested in donating their embryos, eggs or sperm. We can answer any questions you have about surrogacy and educate you about the legal, emotional and financial risks you may face along the way.
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