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How Surrogacy Contracts Work

Surrogacy is the process of a mother carrying a child for a family who can’t conceive. The process can be a godsend for parents who do not have the option of traditional conception. As surrogacy works in Texas, it involves a life-altering event for at least three parties– the intended parents and the gestational mother. Naturally, it is a delicate process with many emotions and moving parts. Surrogacy can be a great option for many reasons- whether the parents are a same-sex couple, medical issues prevent a mother from carrying a baby, or if either parent is concerned about passing down a genetic disorder or defect. For anyone thinking about growing a family through surrogacy, keep in mind that the legal process is just as essential as the biological process.

Texas is known as one of the few “surrogacy friendly” states, and it was one of the first states to enact a body of laws to govern the surrogacy process. Sections 160.751 through 160.173 of the Texas Family Code regulate gestational agreements from inception to conception and through the birth of the child.  These laws can apply to any gestational agreement where either the mother carrying the child or the intended parents reside in Texas. The authors of the gestational laws enacted in Texas, which were written by National Conference of Commissioners on Uniform State Laws, understood the necessity of a law to clarify a process that involves multiple “parents” and can naturally be problematic:

Again we must call on the Legislature to sort out the parental rights and responsibilities of those involved in artificial reproduction. Courts can continue to make decisions on an ad hoc basis without necessarily imposing some grand scheme. Or, the legislature can act to impose a broader order which, even though it may not be perfect on a case-by-case basis, would bring some predictability to those who seek to make use of artificial reproductive techniques.

The Texas legislature elected to have more certainty to govern the surrogacy process, and now the Texas Family Code outlines the contract as well as the parental rights and medical rights for all parties involved. Gestational agreements will start with two “intended parents,”  a “gestational mother,” her spouse if she is married, and the sperm and egg donors (if any).  The intended parents will be the legal parents of the future child and must be married. Importantly, intended parents can be same-sex parents following Obergefell v. Hodges, 576 U.S. __(2015), as long as the parents are married.  To enter into a valid gestational agreement in Texas, the intended parents must show “medical evidence . . . that the intended mother is unable to carry a pregnancy to term and give birth to the child or is unable [do so] without unreasonable risk to her physical or mental health or to the health of the unborn child.” Usually, the intended parents will also have to undergo a home study, similar to the home study conducted by adoption agencies.

The Texas statute makes an important distinction between a “surrogate mother,” who not only carries the baby but also supplies the egg, and a “gestational mother,” whose sole role is to carry the baby. Texas law only permits gestational mothers for an important reason: natural difficulties arise when a surrogate mother is both the biological mother and the gestational mother. The use of purely gestational mothers decreases the possibility that a genetic/ gestational mother will be unwilling to relinquish the child to unrelated intended parents after the child is born. Gestational mothers have two important and clearly defined rights in Texas:

  1. health rights: a gestational agreement may not limit the right of the gestational mother to make decisions to safe-guard her health or the health of an embryo (see Tex. Fam. Code §160.754 (g)); and
  2. a limited ability to terminate the agreement: a prospective gestational mother (and her husband if she is married) may terminate a gestational agreement before she becomes pregnant even if the agreement has already been validated by the Court (see Tex. Fam. Code §160.759).

After the parties are introduced, the next step will be to sign the gestational agreement between the prospective gestational mother (and her spouse if she is married), each donor if donors are involved, and each intended parent. These agreements are defined under Section 160.754 of the Texas Family Code.  This agreement must be signed a minimum of two weeks before any transfer of eggs, embryos, and sperm occurs, which gives all of the parties time to process and understand the agreement before conception occurs.

The gestational agreement must be validated to protect and enforce the parental rights of the intended parents. To validate the gestational agreement, the intended parents and prospective gestational mother may file a petition to validate, and they will attend a hearing to have the agreement validated. At this hearing, the Court will validate the agreement only if it finds that the intended parents provided the required medical evidence, that each party is entering into the agreement voluntarily, and that the parties have a clear understanding of who will be paying the medical expenses associated with the gestational agreement. If the Court chooses to validate the agreement, the Court can render an Order declaring that any children born under the gestational agreement are legally the children of the intended parents (rather than the children of the birth mother).

When the child is born, the intended parents will be able to experience the joy and excitement of officially becoming parents. The intended parents will be named as the parents on the child’s birth certificate. The final step is to file a notice of birth to confirm the agreement and to further protect the parent-child relationship between the intended parents and their new child. With so many moving parts and steps, a skilled legal team can guide intended parents through this newly charted territory with peace of mind and allow the parents to focus on the anticipation of bringing home a new child.

For more information about navigating the legal process of a gestational agreement or to schedule a consultation, contact us at (214)692-8200.