Houston surrogacy and ART law attorneys
Assisted Reproductive Technology Law pertains to methods used for a woman to become pregnant without sexual intercourse. The methods include intracervical insemination (ICI), intrauterine insemination (IUI), egg donation, embryo donation and transfer, in vitro fertilization (IVF), and intra-cytoplasmic sperm injection.
If an unmarried woman uses assisted reproductive technology to become pregnant, the child does not have a legal father. If a married woman uses assisted reproductive technology to become pregnant with her husband’s sperm, her husband is the legal father. If she utilizes donated sperm from another man, her husband is only the legal father if he agrees in writing. If he does not agree in a document signed by both the husband and wife, he may still be adjudicated the legal father of the child, unless he tells the court he does not want to be the legal father within 4 years of knowing the child is not biologically his. In cases where the husband did not supply the sperm, did not live with his wife after the sperm donation, and never openly treated the child as his own, the 4 year limit does not apply.
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 is in cases involving gestational surrogacy where a valid gestational agreement is in place.
Gestational Surrogacy (does not utilize surrogate’s egg): The Texas Family Code § 160.754 authorizes gestational agreements between a prospective gestational mother, her husband (if she is married), each intended parent, and each donor (if the intended parent(s) sperm and/or egg are not used), as long as they enter into the agreement before the 14th day preceding the date of the transfer of eggs, sperm, or embryos to the gestational mother. Also, the Court must approve the agreement before the gestational surrogate becomes pregnant. In the agreement, the prospective mother must agree to the pregnancy, she (and her husband, if she is married) and all donors must relinquish all parental rights and duties, and the intended parents must agree to be the parents of the child. The gestational mother and intended parents must also agree to exchange information about the gestational mother’s health and 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.
It is important to note a gestational agreement 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: The process for validating a gestational agreement involves petitioning the court to validate the agreement 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, and must identify the intended parents, the gestational mother (and her husband, if she is married), and any donors used in the procedure. Once the child is both, the intended parents must file a birth notice with the court so the court can order 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 mother to give the child to the intended parents, if she hasn’t done so already.
Gestational surrogates can change their mind before they become pregnant.
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.
Traditional Surrogacy (utilizing surrogate’s egg): 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.
Egg and Sperm donors: If you are considering using an egg or sperm donor, it is important to understand how Texas defines a donor. While the Texas Family Code states a donor is not a parent of a child conceived by means of assisted reproduction (Sec. 160.702), it limits the definition of a donor to 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. While it is not possible to donate an egg without the assistance and involvement of a physician, this definitely can make things tricky for families who want to use a known sperm donor. If you are considering using a known donor, please contact us to discuss your options and understand your rights. Even if you are purchasing sperm through a bank, there are still many important issues to consider. Learn more below from Tabitha Charlton in a discussion about sperm bank regulation in the US and the things you should consider.