Overview of Texas Surrogacy
As family structures evolve and the concept of parenthood becomes more complex, Texas family law continues to expand upon the opportunities and options for those seeking to build their families. There is no question that the warm, fuzzy idea of a baby brings with it the massive, stress-inducing, whirlwind of planning that includes what appears to be endless preparation filled with paperwork, questions, forms, waiting, checking off lists, state and national database clearances, medical requirements, financial reviews and health insurance coordination. In the midst of all of that, it can be easy to overlook the important legal implications associated with becoming a surrogate. Here we present, in our first installment on this topic, an overview of surrogacy – what it is, and a brief description of the surrogacy process.
In general, surrogacy is a very large undertaking. Most who consider surrogacy have an idea from prior adoption or IVF experiences that the general process can be cumbersome, stressful, time consuming, and all around a frustrating adventure. For that reason, many people do not realize the extent of the surrogacy process. This process must be started first, possibly years in advance and undertaken with the guidance of a professional, including an attorney who specializes in surrogacy and adoption. Of course, many people decide to work through this entire process without an attorney during the initial planning stages, but if a surrogate is going to be placed into the middle of the complex relationship between intended parents, gestational carriers, and the demands of state and national regulations, there is no question that having a trained attorney to assist can really make all the difference in carrying out a successful surrogacy. In particular, an attorney can help navigate through representation issues, parental rights issues, potential divorce implications, and other complications along the way which may directly affect the surrogate . It is paramount to involve an attorney to ensure that these issues are handled up front, rather than having them become complications later in the process.
Surrogacy, generically, is the process in which a woman carries a pregnancy with the intent of returning the child to the intended parents. Gestational surrogacy (also called gestational carrier or compensated surrogacy) is a surrogacy arrangement in which the eggs of the intended mother or donor and the sperm of the intended father are used to create an embryo that is transferred to the surrogate. The surrogate has no genetic relationship to the child. A gestational surrogacy is generally the most common type of surrogacy.
A traditional surrogacy, which is less common, is a surrogacy arrangement that uses the eggs of the surrogate and the sperm of the intended father, or donor. Traditional surrogacy does not require in vitro fertilization (IVF), as intrauterine insemination (IUI) (Artificial Insemination) may be used to transfer the sperm to the surrogate. The surrogate has a genetic relationship to the child in a traditional surrogacy. Given that there are generally less complications associated with custody rights for the child born through a gestational surrogacy, a traditional surrogacy agreement is more complicated than a gestational surrogacy agreement.
In Texas, a gestational surrogacy is not the equivalent of an adoption. In fact, a Texas court will not grant an adoption of a child born through a gestational surrogacy because as far as Texas courts are concerned, the intended parents are the legal parents of the child at the moment of birth. For that reason, the Texas Family Code and Texas Uniform Parentage Act govern the legal process of surrogacy. The primary statute governing surrogacy in Texas is § 160.754.
How Does the Law Treat Surrogacy in Texas?
The legal framework that governs surrogacy arrangements in Texas is set out in the Texas Family Code, Sections 160.754 — 160.763. As a general overview of those provisions:
• A surrogate mother must be over the age of 21 and have given birth to at least one child.
• There must not be a determination that the surrogate mother is incapacitated in order for her to qualify as a surrogate.
• The surrogate must have a medical need for the surrogacy which is certified. The Medical Certificate should discuss which prematurity related necessity which may require assistance when the baby is delivered that likely cannot be adequately taken care of by the surrogate mother.
• The surrogate must agree to undergo psychological evaluation, receive counseling and medical screening. The Surrogacy Agreement should address all of these matters.
• There is a waiting period of 30 issues days after the entry of a court order approving the Surrogate Agreement before intended parents can obtain the post-birth parentage order. Only under strictly limited circumstances can the court waive that requirement (for example, when the baby has a serious medical issue that endangers his or her life).
• The individuals who are acting as intended parents must be United States citizens or lawful permanent residents.
• While the specific language regarding what kind of expenses can be paid in a Surrogate Agreement is relatively limited, it is generally accepted that the intended parents can pay for all pregnancy related medical expenses, any travel both domestically and internationally, child care for other siblings of the surrogate, plus many of her other child care expenses, as well as property housing expenses, and probably even groceries if the surrogate has a special dietary need.
• A comprehensive surrogacy agreement is essential to good risk management before the Start of a surrogacy arrangement.
Qualifications Needed to Be a Surrogate
Under Texas Family Code Section 160.754(a) the requirements for a woman to be considered an eligible surrogate in Texas are described as follows:
(1) The woman may not enter into more than two surrogacy agreements during the same calendar year; and
(2) The woman has previously given birth to at least one child either:
(A) on her own; or
(B) with assistance of a surrogate(1).
Texas Family Code Section 160.754(b) has additional requirements that must be satisfied:
The woman has been screened for infectious disease and other medical and psychological issues and has received professional counseling affirming that she understands:
- (1) the nature and purpose of the surrogacy agreement;
- (2) the necessary short-term and long-term physical and emotional effects of the surrogacy agreement on the woman and on the child to be born; and
- (3) any potential legal consequences under Chapters 160 and 162, including those relating to the parental status of the woman throughout the surrogacy process and the intended parents after the child is born.
It is important for anyone considering becoming a surrogate to understand the requirements imposed upon the surrogate by the Texas Family Code and be willing and able to meet them.
Medical Pre-Requisites
Before a contract may be signed, all parties to a surrogacy agreement must be evaluated and examined by a qualified medical professional of their choosing. Any contract signed after the medical evaluation is completed must be based on, and "subject to" the results of these evaluations. At the very least, the medical evaluation must ensure that:
The term "normal" has not been defined, and is most likely going to vary from one medical provider to another. It is important to keep in mind that "normal" could include some known medical conditions.
Additionally, the following health standards must be met:
If a potential surrogate fails to meet the minimum health standards set forth in the law, the court will consider and grant an exception if the fact does not adversely affect the health of the surrogate, the unborn child, or the commissioning couple if one is known.
Psychological Assessments and Services
As part of the initial screening process, surrogates and donors are required to undergo certain testing to ensure adequate mental and emotional health and fitness. This is designed primarily to protect the best interests of the egg donor or surrogate, but it also protects the intended parents. Genetic issues and psychological disorders can be hereditary, so donors and surrogates who may carry these traits are better screened out.
Evaluation
The required psychological evaluation will take longer than your medical examination, probably about two hours, and is conducted by a PhD psychologist. It will assess the following: Once you have passed your psychological evaluation, your doctor will provide you with a list of recommended mental health resources for emotional support during the surrogacy process. Many agencies offer monthly support groups that help parents, donors and surrogates talk about what they are feeling and how to cope. Staying connected to other people who are experiencing the same things you are experiencing is highly encouraged.
Money and Surrogacy
As a surrogate, it is important for you to know that you will be compensated and reimbursed for expenses incurred as part of your surrogacy journey. Indeed, Texas law prohibits a woman from being a surrogate mother except in the context of a legal, enforceable contract. However, it is important that you understand the difference between "compensation" and "reimbursements."
Compensation
Compensation is the financial payment the Intended Parents make to you for your willingness to carry their child until birth. Amounts vary based on several factors, including the experience of the surrogate and the clinic program. Compensation is not an amount set by law or regulation and the amount of compensation is negotiated by your attorney and the Intended Parents’ attorney as part of your contract, subject to Texas law .
Reimbursements
Reimbursements are payments made by the Intended Parents to you for any expenses paid by you in carrying the child for them. Disbursement varies by Intended Parent and should be included in the surrogacy contract that you and the Intended Parents enter. Reimbursements may include expenses such as:
Reimbursements do not have to be documented in the same manner as legal fees, which are paid to your attorney. With respect to expenses incurred on your behalf either by you or someone else on your behalf, the documentation requirements are less stringent. However, it is not uncommon for Intended Parents to request appropriate receipts or invoices for various expenses.
Further, if you are unable or request assistance to pay your expenses with the Employer/HR Department of the stating in which you work, it is very likely that your insurance will compensate you for your maternity leave, if applicable.
Surrogacy Agreements and Contracts
Surrogate Contracts and Agreements
Texas law requires a legally binding surrogacy contract for many surrogacy arrangements. Typically, you have an agreement with the recipient or intended parents. you have a contract with the surrogate to provide for payment of expenses and other details. You may also have another agreement with the egg donor. In Texas, that will typically be a donor egg contract. Otherwise, you may have an egg donation or IVF contract. In Texas, you can typically do a straight surrogacy or a gestational surrogacy. A gestational surrogacy is when the surrogate agrees to carry the child but she is not the mother. The child is conceived using donor eggs or sperm. A straight surrogacy means the surrogate is both the egg donor and carrier. In other words, in a gestational surrogacy, the donor eggs must be from another person. Usually, you have an assisted reproduction agreement with the surrogate, egg donor, and sperm donor. Many times, many companies involved, such as the sperm bank, will already have a pre-printed agreement. A surrogacy agreement with a surrogate has many provisions. One important provision is regarding fetuses with abnormalities. Sometimes, abnormalities are on the screen and sometimes not. Since you cannot know in advance whether an abnormality will be diagnosed, the agreement should state your wishes regarding terminating the pregnancy. You want to make sure the surrogate does not go against those wishes. In Texas, the surrogacy contract is generally enforcible. There are cases where a surrogate flips on the agreed to positions and attempts to keep a child. This is one of the circumstances where the contract may fall apart. Generally, you want to know the surrogacy agreement has been filed with the court. The Texas Family Code states that the court must sign an order validating any surrogate agreement. If you and both parents consented, the court must agree and sign an order. This is typically what we ask the court to do early on. This order is your protection and your re-assurance that the contract will be valid and enforceable. Other provisions deal with whether the surrogate can store her sperm, birth certificates, whether the surrogate must breastfeed, and other related items.
Finding the Correct Agency or Professionals
Given the complexity of the surrogacy process, navigating the world of surrogacy professionals can be daunting. Intended parents and surrogates should take care to work with a reputable agency, fertility clinic, escrow company, insurance agent, and surrogacy lawyer. Verifying an agency’s legitimacy isn’t as simple as checking their website. While there are many ideal characteristics of a surrogacy professional, the following considerations will help to keep you safe:
Intended parents and surrogates should always question a professional’s experience in LGBT family law and ask what policies the agency has in place to assist lesbian/gay/traditional families. If the professional is unable to answer your questions or you don’t feel comfortable, don’t be afraid to find another professional.
Final Thoughts: Preparing for a PATIENT Surrogacy
To prepare for a successful surrogacy experience, intended parents must ensure that a potential surrogate mother meets the minimum requirements under Texas law, is an overall good fit for you and your family , and has plans in place for what to do if things don’t go as expected. It’s also critical that all parties are represented by their own qualified attorney throughout the surrogacy process. To get the surrogacy process started, simply reach out to a Texas surrogacy lawyer today.