GESTATIONAL SURROGACY LAW TEXAS
Gestational Surrogacy is permitted by Texas by Tex. Fam. Code§ 160-751 through § 160-763 which authorizes gestational surrogacy for married intended parents who follow the procedures specified in the statute, including having their gestational carrier agreement validated by a court before birth. Although Texas surrogacy laws only apply to married intended parents specifically, Texas courts have upheld and validated surrogacy agreements involving unmarried couples and single parents.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Texas, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Texas.
Is Gestational Surrogacy Legal in Texas?
Yes. Statutory law permits gestational surrogacy arrangements and sets forth the requirements for a valid and enforceable surrogacy contract.
Is Traditional Surrogacy Legal in Texas?
Yes. Traditional surrogacy laws in Texas, however, have made it a difficult option to pursue. Because the surrogate is the biological mother of the child in traditional surrogacy, it’s legally treated like adoption. This means that a traditional surrogate must wait at least 48 hours after giving birth before she may relinquish her legal parental rights to a child. All surrogacy paperwork must be filed after birth, and there are often restrictions on the base compensation that a traditional surrogate can receive in ways that do not affect gestational surrogates. Due to the legal and emotional risks it poses, traditional surrogacy in Texas is rare.
Is Compensated Surrogacy Legal in Texas?
Yes. Compensated surrogacy is legal in Texas; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Texas Surrogacy Contract
Texas surrogacy laws outline the aspects that must be included in a surrogacy contract for it to be valid. A surrogacy contract shall be binding and enforceable if:
- It is in writing and signed by all parties
- Either the surrogate or the intended parents have resided in Texas for at least 90 days
- The intended parents are married, the surrogate meets specific requirements, and the parties have independent legal counsel
In addition, intended parents and surrogates must work with separate surrogacy attorneys throughout the execution of the contract. These attorneys will work to negotiate a contract that addresses at least the following:
- The rights and responsibilities of each party
- Any potential risks and liabilities, and the steps to take should they occur
- Surrogate compensation and other financial information, like surrogacy insurance
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations
- And more
Once the contract has been finalized and signed by both parties, the medical process of surrogacy can begin.
Determining Legal Parentage in Texas
Surrogacy laws in Texas typically only permit married couples to receive parentage orders, but courts can (and do) sometimes issue parentage orders to unmarried couples or individuals who pursue surrogacy in Texas. Pre-birth orders may be granted as long as the gestational carrier agreement is first found by a Texas court to be in compliance with the statutory requirements.
Intended parents will rarely need to complete an adoption after birth to establish their legal rights. This will only need to occur in situations where they can’t obtain a parentage order, which is most common with individuals or unmarried intended parents.
Same-Sex Surrogacy in Texas
Q: Is Same-Sex Surrogacy Legal in Texas?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Texas?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Texas?
A: If a surrogacy contract meets all of the requirements set forth by Texas surrogacy laws, it is enforceable in a court of law.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Texas?
A: No. International intended parents are subject to the same Texas surrogacy laws as domestic intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: Typically, intended parents completing a surrogacy in Texas will not need to complete an adoption after birth because, in many cases, they will be able to obtain a pre-birth or post-birth parentage order. However, if they cannot obtain a parentage order, they typically need to complete an adoption to establish their parental rights to their child born via surrogacy.
Q: Does Texas Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. Second-parent adoptions are available in Texas to unmarried couples; married intended parents who can’t obtain a parentage order can complete stepparent adoption instead.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: In most Texas surrogacy cases, the use of a donor egg, sperm, or embryo will not affect the ability of the intended parents to obtain a pre- or post-birth parentage order. However, this will vary by court and judge, Texas laws do provide protections for intended parents by stating that a donor is not the parent of a child conceived through assisted reproduction.
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