State-by-State Surrogacy Laws: Surrogacy in Texas
Texas has laws that enshrine the enforceability of gestational surrogacy contracts as long as the requirements listed in Tex. Fam. Code§ 160-751 through § 160-763 are met. Texas’ surrogacy regulations only pertain to married couples, however, some courts will grant pre-birth orders to other types of families and those that do not share a genetic connection to their child(ren). Texas does not limit surrogacy to married Intended Parents by statute, even as the extra protections afforded by Tex. Fam. Code§ 160-751 through § 160-763 remain tied to marital status. This means anyone can explore surrogacy in the Lone Star state.
A surrogacy-experienced lawyer practicing in Texas can provide you with informed guidance on Texas’ surrogacy laws and how they might apply to you. Surrogacy Place is proud to have a directory of licensed attorneys.
Is surrogacy the right choice to make either as an Intended Parent or prospective surrogate? Only you are qualified to answer that as you consider guidance from your own extensive research, thoughts from your immediate family, trusted doctors and other medical professionals, and advice from a qualified attorney. In all US locations where compensated surrogacy is practiced, there are specific requirements in place to protect all parties involved.
Overall, Texas is considered a “surrogacy-friendly” state, though heavily restricted emergency reproductive healthcare access makes it less friendly than states that freely allow medical intervention in the case of unexpected and severe pregnancy complications.
Do note: Surrogacy contracts typical establish jurisdiction in the home state of the surrogate, though this isn’t always the case. An experienced attorney can provide more specific guidance on considerations in establishing jurisdiction. It is unwise and legally questionable to relocate to another state for the intended purposes of pursuing surrogacy in a more surrogacy-friendly state. Doing so could jeopardize parentage and cause a host of legal repercussions.
Is surrogacy legal and is commercial surrogacy practiced in Texas?
Yes. There are no laws restricting gestational surrogacy including the compensation a surrogate may receive for her services. Gestational surrogacy is commonly practiced in the Lone Star state and the courts generally rule favorably towards establishing parentage via pre-birth order. Intended Parent(s) denied a pre-birth order have access to a post-birth process for establishing their parentage.
Traditional surrogacy where the surrogate is using her own eggs and becomes pregnant via intrauterine insemination (IUI) is treated like adoption with intended Parent(s) having to go through a formal adoption process after the birth of their child(ren). Traditional surrogates in Texas are also heavily restricted in terms of compensation. Traditional surrogates may not receive money from Intended Parents except to cover medical expenses, legal fees, and potentially some types of living expenses.
As you ponder a surrogacy journey in Texas, you’ll want to have clarity on what you’re looking for in a surrogacy journey. Where do you want the delivery take place? How much communication should each side have with each other during and after pregnancy/birth? What are the non-negotiable deal breakers? What type of diet should be followed? There are a host of questions you’ll need to figure out in advance of moving forward. Surrogacy professionals including your doctor and lawyer can provide clarity as you figure out what’s important to you as you begin a surrogacy journey.
Do I have to use a surrogacy agency to find potential surrogates and Intended Parents?
No, you never need to use the expensive matchmaking services of an agency. Many surrogates and Intended Parents find that self-managing their journey with the help of their attorneys is a much better experience. Read some reasons why in the sections below.
What types of Intended Parent(s) can use the services of a surrogate in Texas?
All types of Intended Parent(s) are eligible to use surrogacy, though Tex. Fam. Code§ 160-751 through § 160-763 provides additional protections for married Intended Parents. Married Intended Parents can easily obtain a pre-birth order for their children and have a court validate their surrogacy contract thereby ensuring its enforceability. Courts will consider evidence showing that the Intended mother (parent) is unable to carry a pregnancy or pregnancy is too big a risk to her health or the health of an unborn child, has undergone a home study similar to those done for adoptions (unless waived by the courts), and that health care expenses are covered by a defined responsible party. The surrogate must have previously given birth to at least one child of her own and the courts will ensure both sides entered into the surrogate arrangement voluntarily and had the capacity to do so.
Unmarried parents (of any gender/sexual orientation or marital status) or individuals can also apply for a pre-birth order with results varying by county. In instances where pre-birth orders are unavailable, post-birth parentage orders must be pursued. Intended Parents undergoing a surrogacy journey in Texas should consult with their attorney for guidance on establishing parentage in the state.
Emergency reproductive healthcare is heavily restricted in Texas
In a lot of ways, Texas is ground zero for anti-abortion legislation in America. In addition to Senate Bill 8 allowing private parties to sue those that help women get abortions in civil court, a Texas judge recently attempted to overturn the FDA approval of Mifepristone, a medication used in medical abortions and given to women who are miscarrying to avoid surgery and infections/the potential loss of their uterus. For now, this medication remains legal pending a Texas lower court’s determination scheduled for later this year.
Surrogates in Texas and Intended Parents using a Texas-based surrogate must understand the potential limitations of emergency healthcare, including the possibility of miscarriage. Travelling (which can be seen as financially “helping” a woman receive an abortion) to access reproductive healthcare under Senate Bill 8 remains a complicated issue. International Intended Parents or Intended Parents who are not residents of Texas may not be liable under Senate Bill 8, though this determination should only be reached with the help of an experienced attorney. You should decide if surrogacy in Texas is the right decision given the recent legislation restricting access to emergency reproductive healthcare.
I was born to be a surrogate! What are some of the requirements?
There’s only one way you can be sure you meet the qualifications and that’s to be formally evaluated by an IVF clinic/Reproductive Endocrinologist. Before you reach that step, however, you should consider the qualifications directly. Once you match, you’ll be formally evaluated by the Intended Parent(s)’ clinical team. Take our short “are you qualified to be a surrogate” quiz.
Here are some of the general health and lifestyle qualifications surrogates in Texas should meet:
- Be over the age of 21, generally under the age of 43.
- Have successfully given birth previously to at least one biological child of your own.
- Have a supportive family e.g. a spouse that is on board.
- Have excellent health with a Body Mass Index (BMI) in a healthy range.
- You are done having kids of your own. You consider your family complete and do not see yourself having kids of your own in the future.
- You are financially self-sufficient and do not need surrogacy as your primary income.
- You are not struggling with addiction/drug abuse and will not use tobacco/drugs/alcohol during pregnancy.
The pre-embryo-transfer process in surrogacy usually starts with both sides interviewing prospective Intended Parents and surrogates (also called “matching”), then the surrogate will be evaluated by the Intended Parent(s)’ IVF clinic, and finally, legal contracts are finalized and executed. Surrogates must choose their own dedicated and qualified attorney and Intended Parents must fully cover a surrogate’s legal costs.
For surrogates, here’s an eight-step overview on what to expect.
Using a platform like Surrogacy Place in Texas
Surrogacy Place offers personalized surrogacy matching services that eliminate the need for a surrogacy agency. Users can fine-tune their search using our customized search capabilities, including location-based filters. You do not need a surrogacy agency to find your perfect match.
While users signing up as surrogates can take advantage of Surrogacy Place’s self-matching tools and database for free, Intended Parents are required to pay a modest subscription fee in order to access most of the site’s features. Signing up is quick and easy; feel free to create your account at any time at Surrogacyplace.com.
Why choose to not use a surrogacy agency?
Opting for an independent (self-managed) surrogacy journey presents several benefits for Intended Parents including significant cost savings. Surrogates reap their own benefits as well as agencies consume a substantial portion of the Intended Parents’ available budget which can limit the funds available to pay surrogate compensation.
Using Surrogacy Place for independent matching enables a more personalized process based on specific criteria, such as location, embryo status, views on vaccines and more. Many Intended Parents and surrogates appreciate being able to communicate directly throughout the journey, ensuring that their preferences and opinions are heard and taken into consideration.
There are no guarantees an agency has an ideal match in their database and many are quite secretive as to how many clients they currently represent. In other words, using an agency doesn’t mean a better or more successful surrogacy journey.
Surrogates frequently make the choice to go independent. Here are some the reasons surrogates prefer independent journeys.
Surrogacy is very expensive for Intended Parents. Here’s some of the costs Intended Parents should expect to pay for a surrogacy journey.
Need information about a different state? We compiled guidelines from all 50 states. Check out our surrogacy by state guide.
