Like many areas of family law, surrogacy laws vary from state to state. Surrogacy can be further complicated when parents decide to separate or divorce before the child is born. The case of The View co-host Sherri Shepherd and her soon-to-be ex-husband Lamar Sally made headlines for this very reason.
Fortunately, there is a bright side to the surrogacy story here in Texas, especially for married couples who are eager to have a child but are unable to conceive and successfully deliver a baby the old-fashioned way.
Texas Is a Surrogacy Friendly State
The Lone Star state is one of the few states in the US to recognize and enforce gestational agreements. In 2003, Governor Rick Perry signed House Bill 729 into law, which amended the Texas Family Code and authorized surrogacy agreements between a gestational mother and intended parents.
The intent was to simplify the process for intended parents to become the only legal parents and for the gestational carrier to relinquish all rights pertaining to the child. Once the contract for gestational surrogacy is approved, it triggers a judicial order requiring that only the intended parents be listed on the child’s birth certificate after the child is born.
Laws pertaining to surrogacy vary widely in other states. According to the American Bar Association, there are four categories that describe how states deal with surrogacy in the US (some states fall into more than one category):
- It’s a crime to pay for surrogacy, and you could serve time.
- Surrogacy agreements are unenforceable.
- Surrogacy agreements are recognized through legislation or case law.
- Surrogacy simply is not addressed.
Know the Facts about Surrogacy in Texas
Intended parents and surrogates should weigh the facts before entering into any type of surrogacy agreement. If you are considering surrogacy in Texas, consider these seven critical facts before taking the next step.
1. Texas surrogacy law only applies to married, heterosexual couples. While Texas law doesn’t say it is illegal for same-sex couples or single persons to enter into a gestational agreement, only married, heterosexual couples are provided the protections that HB 729 provides. That doesn’t mean it’s impossible to arrange for surrogacy in Texas if you’re in a same-sex relationship or single, it just means you need to utilize other avenues to achieve your goal of parenthood.
2. Same-sex couples and singles have options outside of HB 729. A Texas family law firm experienced in surrogacy arrangements can explain the options pertaining to traditional surrogacy (where biological parent/s agrees to terminate parental rights and intended parents pursue adoption) or seeking surrogacy in other states such as Illinois, where the laws recognize surrogacy agreements entered into by same-sex couples and single parents.
3. Traditional surrogacy agreements are not covered by HB 729. In gestational surrogacy agreements, the surrogate can’t be an egg donor as is often the case in traditional surrogacy agreements. Instead, an embryo is implanted into the surrogate’s womb. HB 729 does not recognize traditional surrogacy agreements.
4. Intended parents can utilize egg and sperm donors. The intended parents don’t need to be genetically tied to the embryo in order to be covered by Texas gestational agreement law. However, legal agreements pertaining to egg and sperm donors will need to be addressed.
5. Married couples don’t need to be Texas residents to take advantage of Texas surrogacy laws. In order for the gestational agreement to be valid, one of the parties (either an intended parent or surrogate) needs to establish residency in the state of Texas. If the surrogate is a Texas resident, couples from out-of-state (and other countries) can proceed with surrogacy here in Texas.
6. Intended parents and surrogates must comply with a number of requirements in order to obtain a valid gestational agreement in Texas. For the married, heterosexual couple and surrogate, the state of Texas requires that several steps be taken prior to validating a gestational agreement. Some of these requirements include:
- The intended mother is unable to carry a child or would be exposed to physical or mental health risks if she became pregnant.
- The gestational agreement must be signed by all parties and submitted to the court at least 14 days prior to an embryo transfer.
- The surrogate maintains control pertaining to her and the unborn child’s health-related decisions and issues during the pregnancy.
- All parties have entered into the agreement voluntarily and understand what the gestational agreement involves.
- The gestational carrier has successfully delivered a child in a previous pregnancy and is able to endure another pregnancy and delivery without unreasonable physical risk to herself or the unborn child.
- All health risks pertaining to the parties involved have been thoroughly explained by a physician.
- The agreement clearly explains which party is financially responsible for pregnancy-associate expenses and provides for the health and safety of the surrogate and unborn child.
7. Only seek advice from reputable Texas family law firms and surrogacy agencies. Surrogacy and gestational agreements shouldn’t be taken lightly due to the emotional and financial stakes involved. Look for a Texas family law attorney who has experience handling surrogacy agreements and ask him or her to recommend or connect you with a surrogacy agency they know and trust.