Texans enjoy some of the best protections for surrogacy and donor agreements for egg, sperm and embryos. Although surrogacy laws in Texas protect these agreements, the legal rules around these agreements are complex. If your agreement does not closely follow the legal rules, then you are at risk of revocation of the agreement and other problems. Reproductive lawyers experienced with Texas surrogacy laws understand how to draft these agreements to accomplish your goals.
Surrogacy agreements and donor contracts can help you:
Egg donors may receive payment for donation. Embryos and sperm donors cannot lawfully receive payment. Donation also must occur under the care of a licensed physician for the purpose of assisted reproduction only.
Not necessarily. A single person can receive a donation of genetic material or enter into a surrogacy agreement.
If a couple intends to use a surrogate, then Texas law protects a surrogacy agreement only if the couple are legally married.
Yes although Texas requires the couple marry before the surrogacy law applies. The surrogacy statute does not limit protection to opposite sex couples.
Nothing in the surrogacy statute prohibits transgender individuals from becoming a surrogate parent. The same rules would apply to a couple in which one or both people are transgender.
There is no requirement in Texas that you employ a surrogacy agency for a surrogacy or donation. Nevertheless, you may want to work with a reputable surrogacy agency. These agencies can help make the process easier for you. These agencies have experience screening donors and surrogates which will help avoid problems down the road. They can also recommend attorneys and medical providers. They will ask you to sign a contract and you should have your reproductive lawyer review it before signing.
There are two types of surrogacy:
Traditional surrogacy is when the surrogate has a genetic relationship to the child. (The surrogate is the biological mother to the baby.) In Texas there is no protection for this form of surrogacy. As a result, there are legal risks to this approach.
Gestational surrogacy is when the surrogate has no genetic relationship to the child. In this method an embryo from another biological mother and father is implanted in the surrogate to carry. This form of surrogacy is protected by the Texas surrogacy statute.
Your reproductive lawyer can discuss the legal and non-legal risks involved in both approaches.
Although Texas does not protect traditional surrogacy agreements, it does not prohibit them. The parties may sign a contract in which the surrogate agrees to relinquish her rights after giving birth. The surrogate parents will then adopt the baby. This is a more complex arrangement than a gestational surrogacy; however, the surrogate parents may have good reason to make that decision.
If the surrogate decides not to relinquish her parental rights, then there is nothing the surrogate parents can do to force her to relinquish her rights or involuntarily terminate her rights. She possesses all the parental rights of any other biological mother. The surrogate parents may have to go to court in a child custody case and may even have to pay her child support.
Gestational surrogacy agreements are often lengthy and cover many contingencies. Generally, the agreements address these core issues:
Generally either side to the agreement can unilaterally cancel the agreement; however, once the surrogate becomes pregnant the agreement cannot be revoked. If revocation becomes an issue, then you should talk to your fertility lawyer right away.
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