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Legal Aspects Of Assisted Reproduction In Texas

Texas is the best jurisdiction in the U.S. for couples interested in third party assisted reproduction. With the most progressive parentage legislation of any state, participants in donor and gestational arrangements are granted the full protection of the law. Following is a brief summary of the applicable laws as they relate to assisted reproduction.

I.  Donor Arrangements

Texas has been a leader in the legal treatment of donor arrangements for many years. Texas law covers arrangements in which sperm, eggs or embryos are donated by a third party and transferred to an intended mother who will carry and give birth to the resulting child. The intended mother will be the legal mother of the child by virtue of bearing the child and there is no need for an adoption or any court involvement. If the intended mother is married, her husband will be legal father of the child so long as he has consented in writing to the arrangement. This means that, so long as the intended mother is able to carry a child, any combination of genetic contributors is possible and the intended parents will automatically be the legal parents of the child upon his or her birth. Similarly, upon signing the proper documentation the donor will have no legal rights or obligations with respect to any child that the intended mother may carry.

II.  Gestational Arrangements (Surrogacy)

By statute, court-approved "gestational agreements" between intended parents and their gestational mothers (surrogates) are valid and enforceable in Texas. The gestational mother may be compensated for her efforts and the intended parents will be recognized as the legal parents of the child upon his or her birth without the need for an adoption. The names of the intended parents go directly onto the birth certificate. Out-of-state couples can also take advantage of the Texas surrogacy law if they work with a gestational mother residing in Texas.

Texas law authorizes a wide variety of gestational arrangements. The most common would be one in which the gestational mother carries a child that is biologically related to one or both of the intended parents. But it is also possible to have a court-approved enforceable arrangement in Texas where there is no biological connection whatsoever between either of the intended parents and the child. This would be the case where the intended parents choose to work with both an egg donor and sperm donor and transfer the resulting embryos to a gestational mother.

The parties have their rights determined by the court prior to any embryo transfer to the gestational mother. A contract must satisfy numerous requirements before the court will approve it as a "gestational agreement". The principal requirements are as follows:

  • The intended parents must be married to each other
  • The parties must sign the agreement more than 14 days before the date of the transfer of embryos to the gestational mother
  • There must be medical necessity for the arrangement (for example, the intended mother is unable to carry and deliver a child or the pregnancy would pose an unreasonable risk to her physical or mental health or to the health of the child)
  • The gestational mother must have had at least one previous pregnancy and delivery and carrying another pregnancy to term and giving birth will not pose an unreasonable risk to her physical or mental health or the child’s health
  • The gestational mother’s eggs cannot be used in the procedure and
  • Unless waived by the court, the intended parents must complete a home study

The agreement must also provide various other safeguards for the health of the gestational mother and disclosures designed to ensure that all parties have full knowledge of the arrangement and its risks.

Although the Texas surrogacy statute is broad, it does not protect so-called "traditional" arrangements in which the gestational mother carries and relinquishes custody of her own biological child to the intended parents. It also does not apply to single persons. Even in these situations, however, Texas law is not unduly harsh. Although the statute makes a contract that does not qualify as a "gestational agreement" unenforceable, it does not make it illegal. In this event the parties must look to general Texas family law to determine their parental relationships.

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