What are the laws regarding surrogacy in Texas?

In Texas, the woman who gives birth is always the mother, even if another woman donated the egg(s)/embryo(s). The only exception to this rule applies to cases involving gestational surrogacy where a valid gestational agreement is in place.
Using a surrogate in texas

The Texas Family Code § 160.754 authorizes gestational agreements between a prospective gestational surrogate, her husband (if she is married), each intended parent, and each donor (if the intended parent(s) sperm and/or egg are not used).

What is the difference between a gestational and traditional surrogate? A gestational surrogate does not use her own egg and has no biological relationship to the child she carries. A traditional surrogate utilizes the surrogate’s own egg, making the traditional surrogate the biological mother of the child. Texas does not have a statutory authorization of traditional surrogacy arrangements, so the traditional surrogacy arrangement is handled similarly to a parental termination and adoption, in that, at the birth of the child, the genetic father, surrogate (and surrogate’s husband, if she is married), execute an affidavit acknowledging paternity. The child’s birth certificate is then issued with the names of the genetic father and surrogate. Forty-eight hours after birth, the surrogate (and her husband, if she is married) execute affidavits relinquishing parental rights, so the genetic father and his wife can then file for a termination and adoption of the infant.

What should my gestational agreement say?

It must identify the intended parents, the gestational surrogate (and her husband, if she is married), and any donors used in the procedure. The prospective gestational surrogate must agree to the pregnancy, and she (and, if she is married, her husband) and all donors must relinquish all parental rights and duties. The gestational surrogate and the intended parents must also agree to exchange information about the gestational surrogate’s health, as well as each intended parent throughout the period covered by the agreement. Additional terms and agreements that must be set out in the gestational agreement in order for a court to validate it include:

  • if there is more than one intended parent, they must be married to each other and both must be party to the gestational agreement;
  • the eggs transferred to the gestational surrogate must be from an intended parent or donor; and
  • it must state that the physician performing the assisted reproduction procedure has informed the parties to the agreement of the rate of successful conceptions and births attributable to the procedure, including the most recently published outcome statistics for the facility where the procedure will be performed; the potential for risks associated with the implantation of multiple embryos; nature of and expenses associated with the procedure; health risks associated with fertility drugs, egg retrieval, and egg/embryo transfers; and reasonably foreseeable psychological effects resulting from the procedure.

What can't my gestational agreement say?

It may not limit the right of the gestational surrogate to make decisions to safeguard her health or the health of an embryo.

How To validate a gestational agreement:

First, and most importantly, you must petition the court to validate the agreement and the court must approve it before the gestational surrogate becomes pregnant. The petition may be filed in the county of the gestational surrogate or the intended parents, as long as they have lived there for at least 90 days.  Once the child is born, the intended parents must file a birth notice with the court, so the court can find that the intended parents are the parents and order the Bureau of Vital Statistics to issue a new birth certificate naming the intending parents as the child’s parents. If necessary, the Court may also order the gestational surrogate to give the child to the intended parents, if she hasn’t done so already.

Can a gestational surrogate change her mind?

If a valid gestational agreement is in place, a gestational surrogate cannot change her mind once she is pregnant. 

What happens when I don’t have a valid gestational agreement?

In the event your gestational agreement is not validated by the court, the gestational mother will be the legal mother and, if she is married, her husband will be the legal father. In this situation, the gestational surrogate (and her husband, if married) will need to relinquish parental rights and the intended parents will be required to adopt the child in order to become the legal parents to the child. Should the gestational mother decide to keep the child, the intended parents have no legal rights to the child.

What is the difference between a gestational and traditional surrogate?

A gestational surrogate does not use her own egg and has no biological relationship to the child she carries. A traditional surrogate utilizes the surrogate’s own egg, making the traditional surrogate the biological mother of the child. Texas does not have a statutory authorization of traditional surrogacy arrangements, so the traditional surrogacy arrangement is handled similarly to a parental termination and adoption, in that, at the birth of the child, the genetic father, surrogate (and surrogate’s husband, if she is married), execute an affidavit acknowledging paternity. The child’s birth certificate is then issued with the names of the genetic father and surrogate. Forty-eight hours after birth, the surrogate (and her husband, if she is married) execute affidavits relinquishing parental rights, so the genetic father and his wife can then file for a termination and adoption of the infant.

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