Essential knowledge for Surrogacy Agreements

Surrogates are women who carry children for a family who are unable to conceive a child themselves. With the legalization of same sex marriages across the United States as well as the continuing need for helping spouses in traditional marriages conceive and raise children, surrogates are in high demand right now.

For many people the most important reason to get married is to have children and raise a family. Various reasons can keep these dreams from coming to fruition but surrogates can help fulfill these goals and aspirations for many different kinds of families in Texas.

For instance, many people are getting genetically tested early in life to determine if he or she carry any maladies that may be transferred unknowingly to their children. In order to avoid the emotional and often times physically painful consequences of doing so, those people afflicted by genetic disorders and problems may opt to engage in an agreement with a surrogate to bring a child into the world.

Surrogacy agreement requirements in Texas

As with any area of family law, surrogacy relationships and agreements carry with them requirements that must be met in order to be valid in a court of law. Many people do not know that Texas was among the first states to implement laws related to surrogacy. Those laws are encoded within the Texas Family Code in Section 160.

The agreements the regulate relationships between parents and their surrogate-partners are detailed within those sections. An agreement that relates to a surrogate or family in which at least one party resides in Texas are covered by our laws.

The intention in creating these laws was to create a more streamlined and straightforward method for allocating rights and responsibilities as to those parties involved in surrogacy arrangements. The alternative was to have judges across Texas create their own rules thereby setting ourselves up for having hundred of different courts with their own individual rules in place to govern an area of family law that would be expanding dramatically in the following years.

The type of contract that may be agreed to as well as the parental rights of new parents and the surrogate are outlined in these set of laws. A mother, a father, a gestational mother, her spouse (if any) as well as egg/sperm donors are all relevant persons to be concerned with and our State Legislature sought to provide guidance to all parties involved with this process.

For starters, the intended parents of the child conceived and born via a surrogate must be married and must show evidence that they are unable to conceive and carry a child to term without an unreasonable risk of harm to the child or mother. A home study of the mother and father-to-be is typically conducted by a court appointed representative.

Surrogate vs. Gestational mother

A surrogate is a woman who will carry the child to term but will also supply the egg used in conception herself. A gestational mother carries the child but supplies no biological material involved in conception. Texas allows for gestational mothers to be involved in the surrogacy agreements that are the subject of this blog post.

As I’m sure you have seen in television shows and movies there can be a possibility that a surrogate mother would be unwilling to part with the child that is literally a part of them.

As far as rights that a gestational mother has in this scenario, there are two basic ones that need to be detailed here:

  1. No gestational agreement may limit the right of the mother to make decisions to protect her own health or the health of the embryo (Texas Family Code section 160.754(g)
  2. The gestational mother (and her husband if she is married) may choose to terminate a gestational agreement before the pregnancy begins. (Texas Family Code section 160.759). This is true even after an agreement has already been approved by a court.

Once an agreement has been validated by a court all of the parties- the gestational mother, her spouse, the intended parents as well as any donors must sign the agreement. The intended parents have rights that are to be enforced by this agreement as well.

So long as a court finds that the required evidence has been provided showing that they as a couple could not conceive and give birth to a child on their own without assistance and the agreement has been entered into willingly by all parties a court will approve and validate the agreement. The validation of the agreement means that any children born under the agreement are legally the children of the intended parents rather than the birth mother and her spouse, if she is married.

The end result of a gestational agreement: A baby is born to two happy parents

Assuming that the pregnancy allows for a live birth, the child will be legal offspring of the intended parents as if the intended mother had physically given birth to the child herself. No reference to the gestational mother is made on the child’s birth certificate and no rights are afforded to her legally.

While this may seem harsh considering what the gestational mother went through as far as the pregnancy and birth involves, it is part of the agreement that all parties knowingly and willingly entered into more than nine months prior. In an age where so many people would like to be parents and are unable to for various reasons, gestational agreements assist these future parents achieve their goals in as straightforward and stress-free a manner as possible.

Questions on surrogacy/gestational agreements? Contact the Law Office of Bryan Fagan

If you and your spouse find yourself in a position where you are interested in moving forward with a gestational agreement in order to have a child, please consider hiring an attorney to help yourself in this process. As discussed in this blog post there are numerous steps and many opportunities for details to be missed in a long and demanding process. Having an experienced family law attorney by your side can provide you with confidence that your goals will be met in a timely manner.

The Law Office of Bryan Fagan stands ready to represent you and your family in this or any other type of family law scenario. We offer free of charge consultations with one of our licensed family law attorneys. Contact us today to learn more about our office and the services provided to our clients.


If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. Adoption in Texas: Essential information that you need to know
  2. 15 Simple (But Important) Things To Remember About Texas Adoption Cases And Lawyers
  3. Fathers' Rights: Children Born Out of Wedlock in Texas?
  4. Terminating Parental Rights in Texas on the Absent Parent
  5. Voluntarily Relinquishing Your Parental Rights in Texas
  6. What rights does a father have in Texas?
  7. Mom Versus Dad Who Gets the rights? - Custodial Rights Vs. Non-Custodial Rights in Texas
  8. Husband Not the Father, what do I do in a Texas Divorce?
  9. I am not the biological father but I want to be - Paternity by Estoppel?
  10. Can my Texas Driver's License Be Suspended for Not paying Child Support?
  11. What do I do if I have overpaid child support in Texas?
  12. Child Custody Basics in Texas

Law Office of Bryan Fagan | Texas Adoption Lawyers

The adoption process can be daunting at time. You don’t have to face it alone. The attorneys at The Law Office of Bryan Fagan can help you navigate the process and create your perfect family. If you are in the greater Houston area and are interested in learning more, contact us today to speak directly with one of our adoption attorneys about your case.

Our Spring, Texas Adoption Lawyers are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. Law Office of Bryan Fagan handles Texas Adoption Cases in Spring, Texas or surrounding areas, including Harris County, including: Cypress, Klein, Humble, Tomball, the FM 1960 area, North Houston; and Montgomery County, including: Conroe and The Woodlands; as well as the surrounding counties of Fort Bend, Grimes, Waller, and Washington, contact us today to speak directly with one of our family law attorneys about your case.


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