Assisted Reproduction / Surrogacy
The success and achievements of medical technology in recent years have resulted in many new ways to create a family. Assisted Reproductive Technology (ART) is becoming one of the fastest growing options for family building. In Texas, the legislature recently passed legislation regarding children and the usage of ART.
Texas law specifically provides that a donor is not a parent of a child conceived by means of assisted reproduction. The new legislation states that if a husband provides sperm for or consents to assisted reproduction by his wife as provided by Texas Family Code Section 160.704, he is the father of any resulting child. Texas Family Code Section 160.704 provides consent by a married woman to assisted reproduction must be in a record signed by the woman and her husband. This requirement does not apply to the donation of eggs by a married woman for assisted reproduction by another woman. Failure by the husband to sign a consent before or after the birth of the child does not preclude a finding that the husband is the father of a child born to his wife if the wife and husband openly treated the child as their own. There are specific statues identifying the grounds on which a father can contested his paternity and what happens in the event of a divorce between the intended parents or upon the death of an intended parent.
The Texas Family Code also addresses the requirements of gestational agreements and the legal effects of entering into a gestational agreement. For instance, the mother-child relationship exists between a woman and a child by an adjudication confirming the woman as a parent of the child born to a gestational mother under a gestational agreement, if the gestational agreement is validated pursuant to the requirements of the Texas Family Code or enforceable under other law, regardless of the fact that the gestational mother gave birth to the child.
Similarly, the father-child relationship exists between a child and a man by an adjudication confirming the man as a parent of the child born to a gestational mother under a gestational agreement, if the gestational agreement is validated pursuant to the requirements of the Texas Family Code or enforceable under other law.
Texas law authorizes a prospective gestational mother, her husband if she is married, each donor, and each intended parent to enter into a written agreement providing that:
(1) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;
(2) the prospective gestational mother, her husband if she is married, and each donor other than the intended parents, if applicable, relinquish all parental rights and duties with respect to a child conceived through assisted reproduction;
(3) the intended parents will be the parents of the child; and
(4) 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.
The intended parents must be married to each other and each intended parent must be a party to the gestational agreement. The gestational agreement must require that the eggs used in the assisted reproduction procedure be retrieved from an intended parent or a donor. The gestational mother's eggs may not be used in the assisted reproduction procedure.
The gestational agreement must state that the physician who will perform the assisted reproduction procedure as provided by the agreement has informed the parties to the agreement of:
(1) the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed;
(2) the potential for and risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure;
(3) the nature of and expenses related to the procedure;
(4) the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures; and
(5) reasonably foreseeable psychological effects resulting from the procedure.
The parties to a gestational agreement must enter into the agreement before the 14th day preceding the date the transfer of eggs, sperm, or embryos to the gestational mother occurs for the purpose of conception or implantation. Furthermore, a gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo.
The law also clarifies that a gestational agreement does not apply to the birth of a child conceived by means of sexual intercourse.