PHAM & CLOVES, PLLC

GESTATIONAL AGREEMENTS IN TEXAS

By The Houston Invitro Fertilization Attorneys (Houston IVF Lawyers)

Texas courts recognize gestational agreements as a method by which prospective parents enter into an arrangement with a gestational mother (formally known as a surrogate mother) and her husband, if married, and each donor (other than the intended parents) in which each party (except the would-be parents) gives up all parental rights and duties regarding the child conceived through assisted reproduction. The agreement also provides that the would-be or intended parents become the parent of the child.

For a gestational agreement to be enforceable, there are specific requirements that must be met. You should consult a qualified Houston Family Law Attorney prior to entering into a gestational agreement. Specifically, the following are required under Texas law for a gestational agreement to be validated by a Texas court:

1. The gestational mother must agree to pregnancy through assisted reproduction;
2. All parental rights must be relinquished by the gestational mother, her husband, if married, and each donor other than the intended parents;
3. The intended parent must be the parents of the child;
4. The gestational mother and each intended parent must exchange all relevant information regarding the health of the gestational mother and each intended parent throughout the period covered by the agreement;
5. The intended parents must be married to each other and must be a party to the agreement;
6. The agreement must require that the eggs used in the assisted reproduction procedure be harvested from the intended parent or a donor. (the gestational mother’s eggs cannot be used in the procedure);
7. The agreement must be entered into by the parties no later than the 14^th day preceding the date the eggs, sperm or embryos are transferred to the gestational mother for the purpose of conception or implantation;
8. The gestational agreement does not apply to the birth of a child conceived by means of sexual intercourse.
9. The gestational agreement cannot limit the right of the gestational mother to make decisions intended to safeguard her health or that of the embryo.
10. The agreement must state that the doctor performing the reproductive procedure has informed the parties to the agreement of:

• the rate of conception success and related births, including the most recent outcome statistics of the procedure at the facility where the procedure is to be performed;
• the risk potential and associated risks associated with the implantation of multiple embryos and potential multiple births;
• the procedures nature and associated expense;
• the health risks of fertility drugs, if applicable, egg retrieval, and egg or embryo transfer procedure; and
• any reasonable and foreseeable psychological effect resulting from the procedure.

Under Texas law, if the above requirements are met, a Texas court will validate a gestational agreement. Texas law does not require that both the gestational mother and the intended parents be residents of Texas in order to validate the agreement. As long as either the intended parents OR the gestational mother has resided in Texas for at least ninety (90) days before filing the petition to validate the gestational agreement

Court validation of a gestational agreement is not required in Texas. However, getting court validation is preferred to establishing parentage through a family court proceeding (adoption). To simplify the process by having a court validate the agreement, the agreement must be validated before the transfer of embryos to the gestational mother. The validation of the agreement establishes the parent-child relationship between the child or children and the intended parents prior to any transfer of the embryos without having to go through the adoption process. Texas courts will not validate a gestational agreement whereby the gestational mother donates her own eggs.

In the event a gestational agreement has not been validated by a court, an intended parent may be held liable for the child’s support. The court may also assess fees, costs, attorney fees, fees for genetic testing and other costs.

For a Texas court to validate a gestational agreement the court must find the following:

1.         The parties to the agreement have submitted to the jurisdiction of the court;

2.         Medical evidence shows that the intended mother is unable to carry a pregnancy to term and give birth to the child without an unreasonable risk to her physical or mental health or to the health of the child;

3.         That an agency, unless waived by the court, has conducted a home study of the intended parents and has determined that said parents have met the standards of fitness applicable to adoptive parents;

4.         Each party has voluntarily entered into the agreement and understands its terms;

5.         The prospective gestational mother has had at least one pregnancy that was carried to term and delivery and that giving birth to another child will not pose and unreasonable risk to the child’s health or to the prospective gestational mother’s physical or mental health;

6.         All healthcare expenses regarding the pregnancy have been provided for and it is understood which party will bear those costs even in the event of termination of the agreement;

If all of the foregoing have been met, the court may render the agreement valid and declare that the intended parents are to be the parents of a child born under the agreement. It is at the discretion of the court to validate the agreement and the standard of review is abuse of discretion.

Before the prospective gestational mother becomes pregnant through assisted reproduction, she, her husband, if applicable, or either intended parent can terminate the agreement by giving written notice to each party to the agreement even of the agreement has been validated by the court. However, if the party terminating the agreement fails to file a notice of termination with the court s/he is subject to appropriate sanctions. Upon notice, the court will vacate its previous order validating the agreement and the gestational mother and her husband, if applicable, may not be held liable to the intended parents for the termination.

As you can imagine, assisted reproduction can be very expensive and have many negative legal consequences. It is important that the gestational agreement meet all the legal criteria and be validated in accordance with the law in order to be enforceable. If you have questions regarding gestational agreements, contact a Veritas Legal Group Houston, Spring and Woodlands Gestation Agreement Family Law Attorney at 832-484-9015 or fill out the online contact form and a Veritas Legal Group Conroe Family Law Gestational Agreement Lawyer will contact you to discuss questions you may have about gestational agreements in Texas.