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Understanding Gestational and Surrogacy Agreements in Texas

Author: Charles E. Hardy

I. INTRODUCTION

A shortage of adoptable children in the U.S. has caused many to retain a “surrogate” or “gestational” mother to bear their child.

Texas has taken bold steps to provide laws that allow for the creation of enforceable “gestational agreements” that protect potential parents and gestational mothers alike. Hopefully, this broad overview of the law in Texas will help you better understand gestational agreements and their effect on your future.

II. THE CONCEPT

Conceptually, a married couple unable to give birth to a child can enter into an agreement with a surrogate or gestational mother to have a child for them if the gestational mother does not contribute her own egg for the embryo (and thus is not genetically linked to the child) and the strict requirements of our statute are complied with in a gestational agreement.

Texas has adopted the concept that if a married couple cannot have a child, they should be able to enter into an agreement with someone who wants to have a child on their behalf. A careful gestational agreement should be drafted in such cases.

III. THE RULES

The rules are very strict for these types of agreements.

Rule # 1. The perspective gestational mother, her husband (if she is married), each donor, and each intended parent must sign the written agreement indicating that:

  • The perspective gestational mother agrees to pregnancy by means of assisted reproduction;
  • The perspective gestational mother, her husband (if married), and each donor other than the intended parents relinquish all parental rights and duties with respect to a child conceived through assisted reproduction;
  • The intended parents will be the parents of the child; and
  • 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.

Rule #2. It is required that the “intended parents” be married to each other and that each intended parent be a party to the gestational agreement.

Rule #3. The agreement must require that the eggs used in the assisted reproduction procedure be retrieved from an intended parent or donor. (The gestational mother’s eggs may not be used in the assisted reproduction procedure)

Rule #4. The agreement must also state with specificity that the physician who will perform the assisted reproduction procedure will discuss specific rates of successful conception and other health and psychological risks associated with the procedure.

Rule #5. This agreement must be signed at least fourteen (14) days prior to the date of the transfer of the donor eggs, sperm, or embryos.

Rule #6. A gestational agreement does not apply to the birth of a child conceived by means of sexual intercourse.

IV. LAWSUIT TO VALIDATE

To solidify the agreement, the intended parents and perspective gestational mother may file a lawsuit to validate the gestational agreement.

The Court has the option to validate in the agreement only among other things, that:

  1. The intended mother is unable to carry a pregnancy to term and give birth or such birth would cause her or the child unreasonable risk;
  2. A social study has been conducted and the intended parents meet the standards of fitness applicable to adoptive parents (unless this report is waived by the Court);
  3. Each parent has voluntarily entered into and understood the terms of the agreement;
  4. The perspective gestational mother has had at least one previous pregnancy and deliver and that the pregnancy would not put her at risk; and
  5. The health costs associated with the pregnancy have been determined.
    Remember that the Court has the sole discretion of deciding whether such an agreement should be validated.

V. TERMINATION OF GESTATIONAL AGREEMENTS

The law provides that any party can terminate such an agreement by giving the other parties written notice prior to the actual pregnancy occurring.

Such a notice of termination must be filed with the papers of the Court.

A perspective gestational mother and her husband, if she is married, may not be liable to an intended parent for terminating a gestational agreement if in compliance with the statute.

SUMMARY

Gestational or Surrogacy Agreements are alive and well in Texas. This newer enforceable option provides a welcome relief to those parents wanting to have a child through a third party and offers assurance to all individuals involved that a fair and forcible agreement can provide for the birth of a child.

DATED: April 21, 2004
Charles E. Hardy
Attorney at Law
12000 Huebner Road, Suite 200
San Antonio, Texas 78230-1204
(210) 349-9933
email: charleshardy@hhzlaw.com

Higdon, Hardy & Zuflacht 12000 Huebner Road, Suite 200 San Antonio, Texas 78230 Telephone: (210) 306-4471 Fax: 210-349-9988
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