Oh, baby! Surrogacy Laws in Texas

In recent news, it has come out that Kanye West and Kim Kardashian West are pregnant with their third child – but this time, they are pregnant by surrogacy. A surrogate mother is defined as one “who becomes pregnant usually by artificial insemination or surgical implantation of a fertilized egg for the purpose of carrying the fetus to term for another woman.” While many think of surrogate mothers being used by homosexual couples or those struggling with infertility, surrogacy has also become popular over recent years for mothers who, like Kim, are unable to carry a baby themselves due to health reasons. In Kim’s case, her first two pregnancies put her at risk for both preeclampsia and placenta accreta. Subsequently, surrogacy has brought about an entirely new sector of family law. This blog will discuss where surrogacy laws in Texas stand today.

There are two different types of surrogacy – gestational and traditional. In Texas, Section 160 of the Texas Family Code covers surrogacy. In a gestational surrogacy, the woman carrying the embryo is in no way related to it. This is because the egg and sperm that make up the embryo are derived from the so called “intended parents.” However, egg or sperm donors may also be used if necessary. In a traditional surrogacy, the woman carrying the embryo is the embryo’s biological mother. This is because the surrogate mother is artificially inseminated by the intended father’s sperm. In both types of surrogacy, the surrogate carries the embryo until birth and then gives the baby to the intended parents to raise. In Kim and Kanye’s case, a gestational surrogate was used.

It should be noted that Texas and many other states do not allow traditional surrogacy. In Texas, only gestational surrogacy is covered by the Texas Family Code. This is due to the fact that if the surrogate mother is married, her husband is presumed as the father of the child. This causes clear issues in determining the legal parentage of the child.

Section 160.754 of the Texas Family Code lays out the guidelines for entering into a surrogacy agreement. Specifically, a prospective surrogate mother, her husband (if she has one), any sperm or egg donors (if there are any), and each intended parent may enter into a written agreement providing that:

(1) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;

(2) the prospective gestational mother, her husband if she is married, and each donor other than the intended parents, if applicable, relinquish all parental rights and duties with respect to a child conceived through assisted reproduction;

(3) the intended parents will be the parents of the child;  and

(4) the gestational mother and each intended parent agree to exchange throughout the period covered by the agreement all relevant information regarding the health of the gestational mother and each intended parent.

The Texas Family Code also requires that the intended parents be married, that the surrogate mother’s eggs may not be used in the pregnancy (this would make it a traditional surrogacy), and that the child may not be conceived by means of sexual intercourse. The agreement must be entered into before the 14th day preceding the transfer of the embryo (or sperm or egg, if using a donor) occurs for the purpose of implementation (or conception, if using a donor).

The gestational agreement also has strict guidelines regarding what information the physician performing the assisted reproduction procedure must provide to everyone involved in the agreement. These include:

(1) the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed;

(2) the potential for and risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure;

(3) the nature of and expenses related to the procedure;

(4) the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures;  and

(5) reasonably foreseeable psychological effects resulting from the procedure.

These requirements highlight not only the importance of understanding everything that goes into the complicated process of surrogacy, but also outline important health risks that both the surrogate mother, her husband (if she is married), and the intended parents should be aware of. In fact, section 160.754 of the Texas Family Code continues to state that a gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo. This goes to show that the laws behind surrogacy are in place to promote the health of the mother and the embryo. However, a surrogate mother is not expected to make decisions that would adversely affect her own health. If a mother is using a surrogate mother to carry her baby to safeguard her own heath, she can’t ask the surrogate mother to risk hers.

Kim held a cherry blossom themed baby shower this past Saturday, November 11, showing that although she is not experiencing a “traditional” pregnancy this time around, she is still a mother-to-be and is celebrating bringing a new baby into the world. Kim and Kanye’s surrogate mother is due in January of 2018, and Kim just announced they are having a baby girl. She will join her siblings North West (4) and Saint West (1), whom Kim carried and gave birth to herself.

By: Liz Feeney

Liz Feeney is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

Innocent Until Proven Guilty? Not in the NFL.

On August 11, 2017, Dallas Cowboys fans were shocked when their star running back, Ezekiel “Zeke” Elliot, was suspended for six games due to a domestic violence altercation that occurred between him and then-girlfriend, Thompson, in July 2016. While the NFL has previously stated that a six game suspension is the baseline punishment for a player’s act of domestic violence, this steep of a punishment has only been upheld in two of nine reports of domestic violence in recent years. These lesser punishments were inflicted upon players who were found guilty of charges such as Andrew Quarless firing a gun into the air after an argument (two game suspension) or Jonathan Dwyer head-butting his wife and breaking her nose (three game suspension).

Three separate altercations, which occurred in Columbus, Ohio, were cited by the NFL as contributing to Zeke’s suspension. The first altercation took place on July 17, 2016, where he allegedly used physical force causing injuries to Thompson’s arms, neck, and shoulders. The second took place on July 19, 2016, which allegedly resulted in injuries to Thompson’s face, arms, wrists, and hands. The third and final altercation, resulting in injuries to Thompson’s face, neck, arms, knee, and hips, allegedly took place on July 21, 2016. The only evidence against Zeke comes from Thompson, those who interviewed her about the incidents, and those who examined her injuries after the incidents.

The NFL’s letter to Zeke regarding his suspension repeatedly stated that the injuries “appear recent and consistent with Ms. Thompson’s description of the incident and how they occurred.” However, there were no other witnesses to any of the incidents. The letter, signed by B. Todd Jones, Chief Disciplinary Officer of the NFL, goes on to say that the NFL’s investigators believed Thompson’s count of all of the incidents and never felt that Thompson was lying to them in their many interviews with her.

None of the incidents led to Zeke’s arrest. In fact, the Columbus Police Department chose not to pursue a criminal prosecution against Zeke. In a statement on the matter, the department said it did not pursue charges against Zeke because of “conflicting and inconsistent investigation.” However, the NFL’s Personal Conduct Policy specifically states that “actual or threatened physical violence against another person” is expressly prohibited. The policy also says that NFL players are held to a higher standard, noting that “[i]t is not enough simply to avoid being found guilty of a crime.” While the NFL has every right to heighten the standard of their players’ behavior, is it just for Zeke to be punished for something that there is no legal proof actually occurred?

This NFL organization holds their players to a higher standard due in great part to their fans. Football is America’s sport, with millions tuning in to watch NFL games each week. The decisions made by the disciplinary authorities are scrutinized by the fans who tune to watch their favorite players compete. Further, young children look up to the players in the NFL as heroes and role models. What kind of example does domestic violence set for the young viewers?

On the other end, Zeke’s suspension appears to be more severe than many cases of domestic violence in the NFL that have occurred over the past couple of years. For instance, former New York Giants kicker, Josh Brown, admitted to beating his wife and was suspended for only one game. (On appeal, Brown was given a six game suspension). Ray Rice, former running back for the Baltimore Ravens, committed domestic violence on video, which resulted in only a four game suspension. Thus, many see Zeke’s punishment as unfair. What example does it set for the fans that their role models can be punished for something they took no part in? While domestic violence is a serious issue in our society, so is punishing someone without proof of their crime.

B. Todd Jones stated in Zeke’s suspension letter that there is simply no evidence that another person could have committed the acts of violence towards Thompson. However, the legal world recognizes that one is innocent until proven guilty. Zeke has yet to be found guilty of domestic violence against Thompson. His suspension is more severe than many proven cases of domestic violence committed by NFL players in the past, leading many to wonder if maybe the NFL is trying to crack down on their players and use Zeke as an example? Zeke has not admitted to committing these acts of violence, nor has a video surfaced of him committing them, so why is his suspension more severe than players who have previously been found guilty of committing domestic violence?

Zeke and his lawyers responded to his suspension by appealing it. Harold Henderson, the NFL’s designated arbitrator, took on the task of determining whether or not the NFL made the right call. In the end Henderson upheld Zeke’s six game suspension. Upon the decision, made on Tuesday, September 5, Zeke’s legal team released a statement saying that the “only just decision was to overturn the suspension in its entirety” and added Zeke “was the victim of a conspiracy orchestrated by the National Football League and its officers to keep exonerating evidence from the decision makers…” However, Zeke and his legal team were not going to admit defeat that easily.

Before Henderson had made his final decision on the appeal, Zeke sued the NFL, seeking a temporary restraining order or preliminary injunction. If granted, the temporary restraining order would prevent the enforcement of Henderson’s ruling. On Friday, September 8, United States District Judge Amos Mazzant III granted Zeke’s preliminary injunction, stating that he “did not receive a fundamentally fair hearing, necessitating the Court to grant the request…” Thus, the Judge’s decision was not based on any of the domestic violence allegations at all, but based on the process that the NFL chose in their pursue against Zeke.

As a result, Zeke played in the season opener on Sunday, September 10. With Zeke’s skills, the Dallas Cowboys defeated the New York Giants 19-3. Due to the preliminary injunction, Zeke will have the opportunity to play this season until the matter is moved through the Court system. While Zeke’s legal team sees this as an ultimate success, it could mean that Zeke has to serve his suspension at a later date. However, Judge Mazzant’s ruling shows that the NFL did not give Zeke the “fundamentally fair hearing” that he was owed. The final decision on Zeke’s suspension will likely be widely criticized by fans on both sides, but the granting of his preliminary injunction is seen as a vital step towards achieving the fair investigation Zeke deserves.

By: Liz Feeney

Liz Feeney is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.