In Your Best Interest, Issue #38

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 abundant 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 into how surrogacy works 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 that 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 much 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, the 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.

Step 2: Identify the surrogate.

Step 3: Gestational contract drafted.

Step 4: Contract reviewed by the parties and their attorneys.

Step 5: Approved contract signed by parties, agency or IVF physician advised.

Step 6: Parents get a court order declaring parentage (the pre-birth order).

Step 7: Baby is born, birth notice is filed, and surrogate relinquishes baby.

Want to speak with a reproductive attorney about surrogacy and donation?

If you’re wondering how surrogacy works in Texas, reproductive lawyer?Lauren Gaydos Duffer ?with the Sisemore Law Firm is here to help. Lauren 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 with Lauren Gaydos Duffer, you can contact the Sisemore Law Firm at?(817) 336-4444 ?or?schedule an appointment online .