Surrogacy can be a beautiful way to have a baby when circumstances prevent a couple or individual from conceiving a child on their own. However, laws regarding surrogacy do vary widely from state to state, so it’s important to understand the surrogacy laws in the state where you hope to have a child. If that state is Texas, you’re in luck. Texas has some of the soundest and most comprehensive laws on surrogacy and egg, embryo and sperm donation in the U.S.
As a Texas reproductive lawyer, I’ve been honored to help many couples (both heterosexual and same-sex couples) and individuals realize their dreams of parenthood. I have also served as legal counsel for individuals who have chosen to play a role in a surrogate pregnancy by way of sperm, egg or embryo donation.
Surrogacy isn’t something you should enter into without careful consideration of the financial, emotional, and legal issues involved. Fortunately, the state of Texas offers an abundance of resources to support prospective parents on their surrogacy journey, as well as legal protections for both parents and donors. In this article, I’ll answer some frequently asked questions about surrogacy and provide insight on how does surrogacy work in Texas.
The Sisemore Law Firm offers complimentary consultations for couples and individuals who have questions about the legal aspects of surrogacy and egg, embryo and sperm donation. You can schedule your consultation here.
What is surrogacy and how does a surrogate work?
Gestational surrogacy—as protected by a gestational agreement under Texas law—involves a pregnancy where a surrogate mother is impregnated via in vitro fertilization, where a fertilized egg is transferred into the surrogate’s uterus. The surrogate, or gestational mother, has no genetic relation to the baby.
With traditional surrogacy—which isn’t protected under Texas law—the surrogate is the genetic mother of the child. The woman becomes pregnant either through IUI (intrauterine insemination) or at-home insemination using the genetic material of the intended father. Again, traditional surrogacy is not protected under Texas law, so it does come with more risk.
For example, the surrogate mother could decide not to relinquish her parental rights, which she has the right to do since she is the genetic mother of the child. The father (and his spouse) would then need to share custody of the child and could be required to pay child support in Texas. In order for a traditional surrogacy arrangement to work, the mother would need to agree to relinquish her parental rights and allow the non-biological intended parent to adopt the child.
Sperm donors also face risks if the proper legal channels are not taken and a written legal agreement is not in place. As the genetic father of the child, they may be financially responsible for that child, unless they take legal steps to establish that they are a donor and not a parent. Donors of sperm, eggs and embryos should speak with a reproductive attorney to learn about the legal, financial and emotional risks associated with surrogacy donation.
What is a surrogate or gestational agreement in Texas?
Per Texas Family Code Sec. 160.752, a legal gestational agreement involves “an agreement between a woman and the intended parents of a child in which the woman relinquishes all rights as a parent of a child conceived by means of assisted reproduction and that provides that the intended parents become the parents of the child.”
While this definition sounds simple, gestational agreements are anything but. Gestational agreements are highly complex documents that are best left to experienced reproductive attorneys to prepare and execute. I highly recommend any individual involved in a surrogate birth—prospective parents, surrogates and donors—hire an attorney to assist with the legal process.
Again, laws pertaining to surrogacy vary from state to state (for example, some states don’t allow or recognize surrogate births). You don’t want to make the mistake of downloading a legal form from the internet, only to find that it “might” be valid in California but isn’t valid in Texas, where your surrogate baby will be born. We see people make mistakes with DIY gestational agreements all too often.
What is a surrogate mother?
According to the Texas Family Code Sec. 160.751, a “gestational mother” means a woman who gives birth to a child conceived under a gestational agreement.” In Texas, the gestational mother has no genetic relation to the child. Again, a surrogate mother in a traditional surrogacy scenario will be the genetic mother of the child but the parties involved would not be protected under provisions of Texas surrogacy and donation laws.
How do you find a surrogate for a surrogate pregnancy?
Some prospective parents will seek out a trusted friend or family member, or even a stranger, to carry their child via surrogacy. This arrangement would be protected under Texas law as long as assisted reproduction (IVF) is used and a gestational agreement is properly executed.
Many prospective parents will turn to a surrogacy agency to guide them through the surrogacy process and match them with a surrogate mom. However, it’s critical to do your research when seeking out a surrogacy agency because not all “agencies” are legit. In fact, we’ve seen scam agencies take thousands of dollars from prospective parents, only to disappear with the money. A reproductive lawyer can be a great resource if you need recommendations for reputable surrogacy agencies.
Once you find a surrogacy agency you’d like to work with, be sure to have a reproductive lawyer review the contract before signing it. Once your contract is in order, the agency will have you fill out a form (known as a match form) indicating your preferences for the surrogate arrangement, then make recommendations for a surrogate from there.
There’s a lot to consider, such as the expenses you will agree to pay. Location may also be important if you want to be present for doctor’s visits during the pregnancy. If you’re OK with attending virtually, location may not be as big of a deal for you. Keep in mind, if your surrogate lives and/or gives birth out of state, you (and your reproductive lawyer) will need to be cognizant of the surrogacy laws in that state (or lack thereof).
Who can qualify to be a surrogate mom?
Your agency, the doctor who will perform the IVF procedure and your attorney will all have guidelines regarding who would be an acceptable candidate for a surrogate mom. Many physicians follow the guidelines set forth by the American Society for Reproductive Medicine (ASRM).
For example, the ASRM recommends that a surrogate be at least 21 years old and have had at least one successful pregnancy and healthy birth in the past. Physicians typically prefer the surrogate to be younger, in order to mitigate complications like hypertension and gestational diabetes that come with pregnancies later in life.
The potential surrogate will also need to undergo a series of medical tests and screening with a mental health practitioner. Your agency and physician can explain what tests will be performed and why. Most agencies and physicians will also require gestational surrogates (and in many cases, the prospective parents) to go through counseling to ensure they understand the potential emotional issues that could arise during the surrogacy process.
While different law firms approach surrogacy arrangements differently, many firms like ours will perform a background check to make sure the surrogate has no criminal history, no past involvement in any kind of CPS investigation and has not been the subject of any allegations of abuse or neglect of any person. We also look into the home environment to help ensure it’s a healthy place for a pregnant woman to live.
In addition, our firm requires prospective surrogates to undergo a psychological assessment to help ensure they don’t have any mental health issues that would complicate the surrogacy arrangement. The assessment can also help determine whether the surrogate mother’s motivation for entering into the agreement is or is not solely for money.
Can anyone pursue surrogacy to help them have a baby in Texas?
Some states like California will allow a female intended parent to use a surrogate to have her baby for vanity reasons. That isn’t the case in Texas, where there must be a medical necessity along with medical evidence to support the need for an intended parent to use the services of a surrogate.
With heterosexual couples, the medical evidence would need to show that there’s a medical history of some kind of physical or emotional complication that would prevent the intended mother from safely carrying her own child. Perhaps the intended mother has miscarried repeatedly in the past or a mental health practitioner believes the stress of pregnancy would be too difficult for her to handle.
As I stated earlier in this article, the state of Texas does afford same-sex couples and individuals the same protection and opportunity to use gestational surrogacy to have a child as it does heterosexual couples. In fact, I was fortunate to handle one of the first same-sex surrogacy cases in Texas before same-sex marriage was recognized in the state.
When it comes to same-gender cases, where both intended parents are male, the medical necessity is clear, since neither intended father would be able to carry a baby. When both parents are female, we often find one of the intended mothers will choose to carry the child, with IUI (intrauterine insemination) used for the IVF procedure. If neither intended mother is medically capable of carrying a child, the couple could use a gestational surrogate to carry their baby.
How does surrogacy work from a process standpoint? A step-by-step guide
While every surrogacy arrangement is a unique and individual process, there are several key steps that prospective parents (and surrogates and donors) should familiarize themselves with before beginning the process. The process generally looks something like this:
Step 1: Establish a surrogacy budget.
Intended parents can expect to pay upwards of $150,000 (and much more in some cases) for the many expenses involved with a surrogate birth. Some expenses include the surrogate’s compensation, agency fees, health insurance, medical expenses, legal fees and certain living expenses, among others. You may also need to consider how does surrogate work compensation factor into the equation because the surrogate may expect you to reimburse them for lost wages if they need to take time off of work.
Step 2: Identify the surrogate.
As mentioned earlier, some people make private arrangements for a surrogate, which may include friends and family members. We’ve also had some clients use online forums to locate a surrogate they want to work with. Many prospective parents turn to surrogacy agencies to help with their search. Reputable surrogacy agencies can explain and streamline the surrogacy process. Not only do agencies help intended parents find an appropriate surrogate, they can provide referrals to health professionals (IVF specialist, OB/GYN, mental health professional) and reproductive lawyers as well.
Step 3: Gestational contract drafted.
This is where the reproductive attorney steps in. Our firm typically starts by asking the client to fill out a match sheet. If the client is working with an agency, the agency will provide us with a match sheet. The match sheet sets out most of the hot topic items that will be included in the gestational agreement. Some of the “hot topics” include:
- What fees and expenses are going to be paid by the intended parents?
- How many embryos are going to be transferred during each transfer attempt?
- What expenses are going to be paid?
- What type of insurance coverage exists or will be purchased?
- What are the expectations after the baby is born?
- Will there be pictures and letters or an hour at the hospital for emotional closure?
- What are all of the parties’ expectations regarding the termination of a pregnancy?*
* New laws regarding abortion make it critical to use a reproductive attorney for surrogacy agreements. In Texas, the laws are so restrictive now that intended parents could face civil and criminal charges if they ask a woman who resides in Texas to undergo an abortion in violation of the laws here. For example, if they pay for the surrogate to go to another state to have an abortion, they could face civil and/or criminal charges in Texas.
Step 4: Contract reviewed by the parties and their attorneys.
Once the contract is drafted, it typically goes to the intended parents to review first, followed by a legal review with the attorney who prepared the agreement. Once the contract is approved by the intended parents, it goes to the gestational carrier and her attorney to review and negotiate. In my experience, revisions are minimal if there are any. Our firm believes in working together as a team, both attorneys and both clients, to get the gestational agreement in a form that meets everybody’s expectations.
Step 5: Approved contract signed by parties, agency or IVF physician advised.
After all the parties sign off on the agreement, the attorneys send out a letter to the surrogacy agency—or to the IVF physician, if it’s a private arrangement—that lets them know the contract was completed. The letter also states that both parties have retained attorneys and both attorneys believe their clients understand what they have agreed to and signed.
Step 6: Parents get a court order declaring parentage (the pre-birth order).
Parents have the option to get a court order to find them to be the parents either before or after a pregnancy is achieved. Most people wait until a pregnancy is achieved because they don’t want to pay additional legal fees until it is necessary. However, there is a legal risk in doing so, because the way the family code is written in Texas, it does state that the gestational agreement is not valid until the court has issued the order naming the intended parents as the parents.
Once the parents decide to move forward, their attorney goes to court to get what is referred to as a “pre-birth order.” They file a petition with the court that the agreement is attached to and notify the court that this agreement does comply with Texas law and that everybody entered into it freely and voluntarily.
The judge can then issue an order that says the intended parents (or intended parent) are in fact the legal parents, and any hospital or birthing center where the baby is born is ordered by the court to list them as the parents on the birth certificate and not to list the gestational carrier, (and if she’s married, her spouse) as the parent.
Keep in mind, not all states will abide by a pre-birth order that originates in Texas, which could be problematic if the surrogate gives birth outside of Texas. This is another reason why it is critical to hire an experienced reproductive lawyer to assist you during the surrogacy process.
Step 7: Baby is born, birth notice is filed, surrogate relinquishes baby.
Once the child is born, the intended parents (or parent) notify their attorney and provide the birth location, date of the birth and full name of the child. The attorney then files a notice of birth with the court to inform the court the child was born on the stated day pursuant to the prior order the court issued.
The court then signs a second order that reconfirms, yes, the intended parents (or intended parent) are the parents of any child that was born pursuant to this agreement. If the carrier has not turned the child over, the court will order she immediately hand over the child to the intended parents. Once the surrogate mom releases the surrogate baby, that typically concludes the surrogacy process.
Want to speak with a reproductive attorney about surrogacy and donation?
If you’re wondering how does surrogacy work in Texas, the Sisemore Law Firm is here to help. We can explain what steps intended parents and egg, embryo and sperm donors need to take to ensure their rights are protected under Texas surrogacy and donation laws.
To schedule a confidential consultation, you can contact the Sisemore Law Firm at (817) 336-4444 or schedule an appointment online.