Surrogacy

In some states, surrogacy is built upon shaky legal ground. Texas is not one of those states. Texas has been a pioneer in the laws surrounding various fertility treatments and parental rights.

What Surrogacy Is

When people think about surrogacy, they usually think of surrogate mothers but there are other forms of fertility treatment that should be discussed when looking at the legal issues surrounding surrogate mothers.

Fertility Problems & Surrogacy

Some fertility problems do not need a third party to donate genetic material. In those cases, the law views the pregnancy and the child no differently than a naturally conceived, carried and born child. There is no need for adoption or a family law attorney in these cases.

Sometimes fertility problems result due to a woman’s ovaries not producing ova but her uterus is healthy enabling her to carry the fetus. In this case, if her husband is fertile, doctors can use an ovum from another woman and implant the zygote into the intended mother’s uterus. In this case, Texas views the intended mother as the natural mother due to her carrying and delivering the baby. Since the sperm was donated from the intended father, there are no concerns over adoption.

Mother by Virtue

Mother by virtue of carrying the fetus also holds true when the fertility problems are on the side of the male and a third party sperm donor is used. In this case, the intended father (the man with no genetic connection to the child) is considered the legal father as long as he documented his consent for the procedure.

Sperm Banks

Sperm banks and ovum banks tend to process anonymous donors and have their clients sign documents that relinquish any rights to any children that may be born from their genetic donations. These documents will also relieve the donors of any obligations to the child. Usually there are no legal complications when doing any of these medical procedures but if potential parents are nervous, they can always ask a family law attorney to verify that the documents were signed and are legal. When dealing with a pregnancy, a little peace of mind can go a long way.

Mother by virtue of carrying the fetus is complicated when the intended mother cannot carry the fetus. A surrogate mother can be used in two different situations. The first is when the intended mother produces ova but cannot carry a fetus and the intended father is fertile. In this case, ova from the intended mother and sperm from the intended father are collected at a clinic and the zygote is implanted into another woman who carries and delivers the fetus. Secondly, it is possible to use a surrogate mother when there is no genetic connection to any of the three adults involved. In these cases, people will use donated ova and sperm to create a zygote which is then implanted into the womb of the surrogate mother.

In these three cases a gestational agreement is made between all parties involved by a family law attorney. In Texas, gestational agreements are legally recognized and legally enforceable. Please note that the gestational agreements may vary but they must be court approved. When a gestational agreement is made in Texas and the child is born, the names of the intended parents are placed upon the birth certificate of the child.

Court approved gestational agreements must contain specific elements. These are:

1. The intended parents must be married.
2. No more than 14 days prior to the implantation of the zygote, the parties must sign the agreement.
3. There must be a valid medical reason for the use of a surrogate mother.
4. This pregnancy cannot be the first pregnancy for the surrogate mother and there are no medical reasons which will prohibit the surrogate mother from safely carrying and delivering the child.
5. The surrogate mother’s ova cannot be used in the creation of the child.
6. The home of the intended parents must be determined to be fitting for a child. Sometimes this requirement is waived.

There are other elements included in the agreement such as any additional safeguards for the surrogate mother’s health and that all parties are entering the agreement with full understanding and consent. Additionally, it is customary for the biological or intended father to cover the medical and/or legal costs of the surrogate mother. Check with your family law attorney for all of the specifics before beginning the process.

Surrogacy That Texas Does Not Recognize

There is one type of surrogate pregnancy that Texas does not recognize. This type is when the surrogate mother is impregnated by the intended father and then intends to relinquish her biological child to the care of the biological father and his wife. It is not explicitly illegal to do this but this situation is not covered under the laws governing surrogate pregnancy. Parents who find themselves in this situation look toward other sections of family law for guidance. A “family law attorney” can advise parents every step of the way.

For true surrogate pregnancies in Texas, the intended parents must be married. Texas law does not make accommodations for single people seeking this option. Since Texas does not recognize gay marriage, it is strongly recommended that gays and lesbians contact a family law attorney to explore what legal rights they have in relation to surrogate pregnancies. Additionally, there is nothing that expressly legally forbids a single woman from seeking the services of an anonymous sperm donation clinic.

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