An introduction to Texas gestational agreements

Texas law sets out very specific requirements.

With women marrying at older ages or deciding they want to become parents later, more people are candidates for using surrogacy to become parents of infants. The laws governing surrogacy vary wildly among the various states, but Texas statutes contain a well-defined process for creating a valid gestational agreement for court approval that clarifies the rights and responsibilities of the parties as well as the legal parentage of the child.

It is noteworthy that Texas passed this law in 2003, relatively early considering that many states still have no legislation or instead restrict the procedure.

Features of the agreement

The parties to the contract may include gestational mother, gestational mother's husband, intended parents, and the egg and sperm donors.

The agreement and court process is available only if:

  • The gestational mother must have already borne a child and another birth would not cause unreasonable risk to the child's health or to that of the gestational mother, including mental health.
  • The gestational mother may not be biologically related to the child by her eggs. Rather, the eggs must be from one of the intended parents or from a donor.
  • The intended parents must be married.
  • Each intended parent is a necessary party to the agreement.
  • The agreement must be signed at least 15 days before the transfer of biological material to the mother for implantation or conception.
  • The gestational mother must have full rights to make health decisions for herself and the embryo.
  • The court approval process is available if the gestational mother or intended parents have lived in Texas for 90 days before the petition is filed; the gestational mother's husband is a party to the court proceeding and the agreement is filed with the court.
  • The intended mother is unable to have a successful pregnancy or pregnancy would cause "unreasonable risk to her physical or mental health or to the health of the unborn child."
  • There must be a provision setting out who is responsible for medical expenses of the pregnancy, whether or not the agreement falls through.

The agreement must provide:

  • The gestational mother (and her husband, if applicable) as well as the egg and sperm donors give up all parental rights and duties.
  • The intended parents will be the legal parents.
  • The gestational mother and the intended parents must provide relevant information about each of their health to each other throughout the agreed time covered by the agreement.
  • The doctor performing the assisted-reproduction procedure must inform all parties about specific information regarding success rates, risks, nature and expenses of the procedure as well as "reasonably foreseeable psychological effects."

Court process

A gestational agreement is not enforceable unless the court validates it or if the pregnancy was through intercourse. Part of the court process is a home study to determine the fitness of the intended parents, unless the court waives this requirement. Ultimately, the judge has discretion to decide whether to validate the agreement. His or her decision may only be overturned if that discretion was abused.

After the court has approved an agreement, the gestational mother, her husband or either of the intended parents may terminate the agreement any time before pregnancy.

After the birth, the court issues an order that the intended parents are the legal parents and that the gestational mother must give the child to them.

If anyone raises the issue of whether the child may actually be the biological child of the mother, the court must order DNA or similar testing to settle the issue.

Attorney Mysti Murphy represents potential parties to gestational agreements.