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
  • 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 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, 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 must exchange information regarding the health of the intended parents and surrogate 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

Can married couples 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

Can unmarried couples get a pre-birth order in Texas?

Can LGBT+ couples get a pre-birth order in Texas?

Can single parents 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 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. 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.

 


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 as reported by the Centers for Disease Control. 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:

 


Frequent Questions about Surrogacy in Texas

Is surrogacy in Texas legal?

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. 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.

In which US states is surrogacy legal?

Surrogacy is legal and supported in almost all U.S. states, with only five with explicit laws forbidding surrogacy agreements. Even among 'unfriendly' states, surrogacy is often still possible, but there are legal obstacles to navigate to ensure your parental rights. Check out SENSIBLE's ratings of friendly surrogacy destinations in the U.S. and worldwide.

Are pre-birth orders possible in Texas?

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.

Are surrogacy contracts valid in Texas?

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.

How much does surrogacy cost in Texas?

The average cost of surrogacy ranges from $120,000 to $150,000 in the United States, but low-cost options start at less than $100,000. Overseas surrogacy costs as little as $50,000 in Eastern Europe or South America, to $80,000 in Western countries like the UK, Greece or Canada.

How much do surrogates earn?

SENSIBLE surrogates make $50,000 to $70,000 for a surrogacy journey in the United States. The surrogate's total pay is separated into 'Base Salary' and 'Benefits'. Benefits usually include a monthly living stipend, maternity clothes, travel expenses, and other fees.

 

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.

 

About the authors

  • Author: admin

  • Reviewer: David Cole

    David Cole is an attorney in the private practice of law specializing in matters relating to assisted reproduction. Mr. Cole assists Intended Parents from around the world each year with gestational surrogacy, egg donation, embryo donation, sperm donation, etc. Mr. Cole also represents gestational surrogates and egg donors from Texas matched to Intended Parents, and also works with surrogacy agencies and fertility clinics around the country. He can be reached at the Law Office of David C. Cole, P.C..

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