The overall concept of surrogacy has been around for a relatively short period of time, but the process has given new hope to parents who are unable to conceive or carry children and same-sex couples. The exact number of babies born through surrogacy to U.S. families each year is not known because most surrogacy pregnancies are not yet tracked. However, it is estimated that the number has quadrupled over the last five to eight years as more and more people are learning that surrogacy is an option.
While families see surrogacy primarily as a joyful means for beginning the parenting process, it also involves a detailed legal process. On the surface, it would seem that a surrogacy agreement might involve only the birth mother and the parties who intend to raise the child. However, each Goranson Bain attorney who assists with these agreements can attest to the fact that they affect more than just these primary parties.
Gestational Agreements Affect Numerous Parties
Under a surrogacy agreement, also referred to as a gestational agreement, a woman agrees to undergo an assisted reproduction process, typically in vitro fertilization (IVF), and then relinquish all parental rights when the child is born. The names of the intended parents, who must be married to each other, appear on the birth certificate.
However, the birth mother and intended parents are not necessarily the only people whose parental rights are affected. This is why the Texas Uniform Parentage Act requires agreement by every individual involved, including the following, where applicable:
- The prospective gestational mother
- The spouse of the gestational mother, if she is married
- Each intended parent
- Each donor, if someone other than the intended parents
The gestational agreement must also state that the physician who will perform the assisted reproduction procedure has informed the parties to the agreement of the following:
- 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;
- the potential for and risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure;
- the nature of and expenses related to the procedure;
- the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures; and
- reasonably foreseeable psychological effects resulting from the procedure.
Nothing in a gestational agreement can limit the right of the gestational mother to make decisions to safeguard her health of the health of an embryo.
It is important to carefully consider the details of the gestational agreement, as the parties must enter into the agreement before the 14th day preceding the date the transfer of eggs, sperm, or embryos to the gestational mother occurs. A delay in the agreement will result in a delay in having the baby.
Texas Law Encourages Surrogacy — With Some Limitations
Some states forbid surrogacy contracts; others have no legislation. Others, like Texas, provide laws to help offset some of the legal issues that started appearing since the surrogacy concept first came into practice around the late 1980s. By involving every necessary party in the gestational agreement process, the law has effectively reduced the possibility of many courtroom arguments pertaining to parental rights.
Perhaps the quickest way to face custody issues after a birth from a surrogate mother is to underestimate the number of parties who are affected by the birth. It is not inconceivable that an egg or sperm donor who learns about the birth after the fact might have the right to request visitation with the infant.
An experienced family lawyer is essential to help ensure that families experience no legal surprises before, during, or after a child is born through a surrogacy agreement. It is best to seek legal support before entering into a surrogacy agreement. To learn about the potential issues based on any set of unique circumstances, contact GoransonBain Ausley.