Surrogacy in Texas

Somewhat Friendly Surrogacy iconTexas is somewhat friendly to gestational surrogacy. Whereas there is legislation allowing married Intended Parents, straight or same-sex, to pursue gestational surrogacy in Texas, the practice is banned for unmarried couples. As for single Intended Parents there is no statute that specifically addresses it, but courts may allow single individuals to seek gestational surrogacy in Texas.

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Is Surrogacy Legal in Texas?

Chapter 160 of the Texas Family Code recognizes gestational surrogacy.
According to the definition, a fertilized embryo is implanted in the gestational mother through assisted reproduction techniques.
The embryo contains both an egg and sperm that are derived from the intended parents or donors. Hence, the child isn’t biologically related to the woman who bears the child or her partner.
The Texas surrogacy law allows the parties involved to get into an agreement. These include:

  • A potential surrogate mother
  • The surrogate’s partner (if any)
  • Egg or sperm donors (if any)
  • Intended parents

These conditions must be met for there to be a written agreement:
(1) the potential surrogate mother agrees to all the terms and conditions including assisted reproduction;
(2) everyone involved (except the intended parents) must relinquish all their parental duties and rights with respect to the child as a result of the surrogacy; these include the potential surrogate mother, her partner (if any), and donors;
(3) no one but the intended parents will be considered the child’s parents;  and
(4) both the intended parents and the surrogate mother must exchange information regarding the health of the intended parents and surrogate mother throughout the months covered by the agreement.

Texas is among the few “surrogacy friendly” states in the country, however, the statute does not cover all areas of surrogacy. It’s believed that the surrogacy law may expand in the future so that more questions regarding surrogacy in Texas can be cleared.

 

Texas Surrogacy Laws at a Glance

Who can get a pre-birth order in Texas?

QuestionAnswer
Married heterosexual couple using own egg and own spermYES
Married heterosexual couple using an egg donor or sperm donorYES
Married heterosexual couple using both an egg donor and sperm donorYES

Who can get a pre-birth order in Texas?

Who can get a pre-birth order in Texas?

Who can get a pre-birth order in Texas?

In Texas there is a Pre-Birth Order and a Post-Birth Order. The Pre-Birth Order is used to create the birth certificate. The Post-Birth Order again establishes parentage and closes and seals the file. All of the answers above apply. If a couple cannot get a Pre-Birth Order because they’re not married, they could petition the court for a Post-Birth Order, but there are risks involved on a case-by-case basis. Otherwise Post-Birth Orders work the same as with Pre-Birth Orders shown above.

 

Pre-Birth and Post-Birth Orders in Texas

A post-birth order isn’t the same as a pre-birth order. While they both do the same job, i.e: declare legal parentage, a post-birth order, unlike a pre-birth order, is made AFTER the birth of the baby. Usually, a post-birth order is executed in the weeks immediately after the delivery. Post-birth orders are the legal option in most US states.

Texas law allows both pre-birth and post-birth orders. The pre-birth order is used to produce the birth certificate. The post-birth order is used after the baby is born to officially establish parentage and close and seal the file

In some cases, the couple may not qualify as a pre-birth order due to not being married or other such situations. In such cases, they can move to the court and request a post-birth order. However, the scenario can be a little risky.

Given that the agreement meets all Section 160.754 requirements, the parties can move to the court to obtain an order that validates the agreement so that it can be enforceable in the court of law.

This process is called the ‘pre-birth order’ by medical professionals and practitioners.

Each of the intended parents is named as the child’s parents in the pre-birth order. They are given the right to make healthcare decisions for the child.

The order requires hospitals and other institutions to mention the name of the intended parents as the child’s parents on all documents including birth certificates issued by the Texas Bureau of Vital Statistics.

The parties have to file a Notice of Birth with the court when a child is born. The purpose of the filing is to notify the court about the birth of a child. Moreover, it results in the filing of documents by the court that confirm parentage. These documents mention intended parents as the child’s parents.

These documents order the surrogate mother to give the child to the intended parents if it hasn’t already been done. The law only considers married couples as ‘intended parents’, however, courts have the option to issue parentage orders to individuals and unmarried couples as well. Each application is determined on a case-by-case basis by the judge.

Following a pre-birth order, both intended parents will be named on the birth certificate. A hearing is not generally required, but could vary. The appearance of the Intended Parent(s) in case a hearing is required is not common, but could also vary depending on the county and judge.

If an order is granted, same-sex parents are named as Mother-Mother, Father-Father, Parent-Parent, their choice. A same-sex couple can’t generally obtain an initial copy of the birth certificate showing the name of the surrogate and intended father, there are alternative ways of doing this on a case-by-case basis, however. An egg/sperm donor does not have any parental rights over the child.

 

Surrogacy Contracts in Texas

A surrogacy agreement that meets all the legal requirements is considered a valid contract and is legally enforceable.

Under the agreement, only gestational surrogacy is allowed. The eggs used in the procedure must come from either intended mother or a separate egg donor. This means that the statute doesn’t cover traditional surrogacy.

The law gives some significant rights to the surrogate mother. The surrogate has the right to take whatever steps she feels are needed to safeguard her own health or the health of the embryo. Intended parents do not have the right to ask or force the mother to put her health or the health of the embryo in danger.

The agreement also must stipulate that the physician in charge has provided full disclosure of all possible risks. The surrogate must declare she’s been fully informed of the clinic’s expected success rates, health risks of the procedure and any medications, emotional and psychological risks, any expenses, and any other potential risks as defined by the physician working on the case.

Texas surrogacy law also allows a short period for the surrogate to reflect on the agreement and change her mind. The parties must enter into an agreement at least two weeks (14 days) before the date of the transfer of embryos, eggs, or sperm to the surrogate mother.

 

Best Surrogacy Clinics in Texas

There are 39 fertility clinics in Texas currently reporting data about IVF cases. Of these, there are 15 clinics that regularly perform “surrogacy-type” IVF cases. Surrogacy cases are those using a donor egg and frozen embryo transfers, which is the most common procedure in a surrogacy journey.

The top IVF clinics in Texas have an average success rate of about 46.4% for each embryo transfer. That compares with 46.5% as the national average, which makes Texas a reasonable destination for a surrogacy journey in the United States.

Of the clinics performing surrogacy-type services, 8 report live-birth rates above the national average. They are:

 

LEGAL DISCLAIMER

All legal information in the SENSIBLE website is intended only as a guide, and not a replacement for opinions of licensed legal professionals. Some information may have changed since the time of publication, or may not apply to the particular circumstances of your case. Please consult an attorney who is licensed in the jurisdiction with authority over your journey.

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