What is surrogacy? How do the parents and the carrier of the child make arrangements? Who is technically the mother? Are there laws for this? These are just a few of the many questions that come to mind regarding surrogacy.
Surrogacy has found its way into the news more and more due to popularity among celebrities and high-profile families. Their stories make the whole process seem effortless, when in reality, behind the scenes there is a lot of time and energy and money that goes into a surrogacy arrangement.
In the US, each state differs in approach to the law applying to surrogacy. The vast majority of states recognize gestational agreements and allow for monetary compensation, although there is still some variance based on exact location within the state. Texas is one of the states that recognizes gestational agreements as legally valid and binding, as long as it meets the requirements outlined in the law.
The specific law that applies to surrogacy and gestational agreements is found in Texas Family Code Chapter 160, Subchapter I. Texas has a number of requirements that must be included in the agreement in order for it to be valid and therefore legally binding. Tex. Fam. Code Ann. § 160.754. This includes an agreement that the gestational carrier and her husband, if she is married, agree to give up all parental rights and duties regarding the child, and that the intended parents will be the parents of the child. Tex. Fam. Code Ann. § 160.754(a). The statute specifically indicates that the intended parents must be married. Id. (b). However, there is evidence that in Texas some courts do not strictly adhere to this, allowing some unmarried couples to be intended parents (Creative Family Connections). There also must be a statement that the doctor used by the parties and will perform the procedure informed them of all the potential risks and effects. Tex. Fam. Code Ann. § 160.754(d). In terms of timing, this agreement must be entered into 14 days prior to the transfer of the embryo for purposes of conception or implantation. Id. (e). After the agreement is entered into by all parties, there must be a petition to validate the agreement, followed by a hearing to validate the agreement. Tex. Fam. Code Ann. §§ 160.755-56.
The above is only a brief summary, and the exact guidelines and requirements can be found in the Texas Family Code. Surrogacy agreements are serious and should not be entered into lightly. When all the parties are aligned and everything is legally valid, surrogacy can be a wonderful option for many families in the journey to expand their families.
Written by: Montana McWilliams, 3L