Texas Legal Considerations
Texas Donor Arrangements
Texas has been a leader in the legal treatment of donor arrangements for many years. Texas law covers arrangements in which sperm, eggs or embryos are donated by a third party and transferred to an intended mother who will carry and give birth to the resulting child. The intended mother will be the legal mother of the child by virtue of bearing the child and there is no need for an adoption or any court involvement. If the intended mother is married, her husband will be legal father of the child so long as he has consented in writing to the arrangement. This means that, so long as the intended mother is able to carry a child, any combination of genetic contributors is possible and the intended parents will automatically be the legal parents of the child upon his or her birth. Similarly, upon signing the proper documentation the donor will have no legal rights or obligations with respect to any child that the intended mother may carry.
Texas Gestational Arrangements (Surrogacy)
By statute, court-approved “gestational agreements” between married couples (heterosexual or gay) and their surrogates are valid and enforceable in Texas. This means the surrogate cannot change her mind and try to keep the resulting child. The surrogate may be paid for her services and the intended parents will be recognized as the legal parents of the child upon his/her birth without an adoption. The names of the intended parents will go directly on the original birth certificate. Out-of-state or non-U.S. couples can also take advantage of the Texas surrogacy law if they work with a surrogate living in Texas.
Texas law authorizes a wide variety of gestational arrangements. The most common would be one in which the surrogate carries a child that is biologically related to one or both of the intended parents. But it is also possible to have a court-approved enforceable arrangement in Texas where there is no biological connection between either of the intended parents and the child. This would be the case where the intended parents choose to work with both an egg donor and sperm donor and then transfer the resulting embryos to a surrogate.
A contract must satisfy numerous requirements before the court will approve it as a “gestational agreement”. The principal requirements are as follows:
- The intended parents must be married to each other
- The parties must sign the agreement more than 14 days before the date of the transfer of embryos to the surrogate.
- There must be medical necessity for the arrangement (for example, the intended mother is unable to carry and deliver a child or the pregnancy would pose an unreasonable risk to her physical or mental health or to the health of the child)
- The gestational mother must have had at least one previous pregnancy and delivery and carrying another pregnancy to term and giving birth will not pose an unreasonable risk to her physical or mental health or the child’s health
- The surrogate’s eggs cannot be used in the procedure and unless waived by the court, the intended parents must complete a home study
The agreement must also provide various other safeguards for the health of the surrogate and disclosures designed to ensure that all parties have full knowledge of the arrangement and its risks.
Although the Texas surrogacy statute is broad, it does not protect so-called “traditional” arrangements in which the surrogate carries and relinquishes custody of her own biological child to the intended parents. It also does not apply to single persons. Even in these situations, however, Texas law is not unduly harsh. Although the statute makes a contract that does not qualify as a “gestational agreement” unenforceable, it does not make it illegal. In this event the parties must look to general Texas family law to determine their parental relationships.
This legal summary was prepared by Gregory Stern (“Attorney”), an attorney licensed to practice law in the State of Texas. It includes information about legal matters but is for general informational purposes only and may not reflect the most current legal developments. This summary is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader of this information or user of this website should act or refrain from acting on the basis of information on this website without seeking legal advice from an attorney. Neither receipt of information presented on this website nor any email or other electronic communication sent to Attorney through this site will create an attorney-client relationship with Attorney, and no such email or communication will be treated as confidential.