Texas Law on Assisted Reproduction

On June 20, 2003, Governor Perry signed Texas House Bill 729 relating to gestational agreements. HB 729 amends the Texas Family Code by authorizing agreements between a gestational mother, her husband if she is married, and intended parents. These gestational agreements permit a gestational mother to relinquish all rights as a parent of a child conceived by means of assisted reproduction and provides for the intended parents to become the legal parents of the child.
 
HB 729 sets forth a mechanism to adjudicate the parentage of an intended mother and intended father to a child conceived by means of assisted reproduction. The bill only applies to the utilization of the intended mother’s egg or the egg of a donor. First, a gestational agreement must be executed by all parties at least 14 days preceding the date of the transfer and must set forth specific facts regarding the nature of the arrangement and rights, privileges, duties and obligations of each party to the agreement. The agreement must further set forth that the physician informed the parties of the rate of successful conceptions and births attributable to the procedure, the potential for risks associated with fertility drugs used in any retrieval or transfer procedure, and the reasonably foreseeable psychological effects resulting from the procedure.
 
Following a confirmed pregnancy, the Court may validate the gestational agreement based upon the following findings:
  • Each party has voluntarily entered into and understands the gestational agreement;
  • The intended mother is unable to carry a pregnancy to term and/or give birth without undue risk to her physical or mental health or the health of the child;
  • Unless waived by the Court, a home study has been completed on the intended parents;
  • The gestational mother has had at least one previous pregnancy and delivery, and another pregnancy and delivery would not pose an unreasonable risk to her physical or mental health or the health of the child; and
  • The parties have adequately provided for which party is financially responsible for the expenses associated with the pregnancy.
Following the validation of the gestational agreement as set forth above, the mother-child relationship exists between the intended mother and any child born to the gestational mother under the gestational agreement and a father-child relationship exists between the intended father and any child born to the gestational mother under the gestational agreement. Upon the birth of the child, the intended mother’s name is placed on the child’s original birth certificate as the mother of the child, and the intended father’s name is placed on the child’s original birth certificate as the father of the child.
 
There is currently no statutory authorization of traditional surrogacy arrangements in Texas. Therefore, the legal proceedings following a traditional surrogacy arrangement are very similar to those of a termination and adoption. At the birth of the child, the genetic father, the surrogate, and the surrogate’s husband if she is married, execute an affidavit acknowledging paternity. This affidavit creates a legal relationship between the genetic father and the child. The child’s original birth certificate is issued with the genetic father’s name as the father, the surrogate’s name as the mother, and the child’s name as is given by the genetic father and the wife. 48 hours following the birth of the child, the surrogate and her husband, if she is married, execute affidavits of relinquishment of parental rights. Based upon the execution of these affidavits, a termination and adoption proceeding is brought by the genetic father and the wife. These proceedings filed through our office are generally filed in Dallas County in Juvenile Court. Dallas County Juvenile Judges have historically waived the six-month waiting period and many of the traditional requirements of adoption in these proceedings, and the matter is generally finalized within thirty days of the birth of the child. A new birth certificate is then issued with the name of the genetic father as the father, the name of the wife as the mother, and the name of the child as given by the prospective parents.
 
Egg and sperm donor arrangements are authorized by statute in the State of Texas. Prior to proceeding forward in an egg or sperm donor arrangement, the parties enter into a contract, which sets forth the rights, privileges, duties and obligations of each party to the arrangement. The parties also execute consent affidavits, which confirm parentage in the recipient couple and exclude the donor as a parent of the subsequent child. Specifically, if a husband consents to the artificial insemination of his wife, the resulting child is the child of the husband and the wife and not the child of the donor. If a husband consents to provide sperm to fertilize a donor egg by in vitro fertilization or other assisted reproductive techniques and the wife consents to have the donor egg placed in her uterus, the resulting child is the child of the husband and the wife and not the child of the donor. Finally, if with the consent of the husband and the wife, a donated preimplantation embryo is placed in the uterus of the wife, the resulting child is the child of the husband and the wife and not the child of the donors. Because these arrangements are protected by statute in the State of Texas, no post birth legal proceedings are necessary.
 
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