.1905201554285.jpg)
When a mother can’t carry a child – for any number of reasons – turning to a surrogate is an option that many consider. While surrogacy was far less common a mere decade or two ago, it’s now considered fairly mainstream. More and more couples are turning to surrogates to carry the children they can’t.
If you’re considering this approach, it’s important to have a basic understanding of the legal implications. If you have questions or concerns about surrogacy and your legal rights, turn to a trusted Killeen family law attorney who has considerable experience successfully handling complex reproductive law cases like yours.
Traditional Surrogacy vs. Gestational Surrogacy
The State of Texas addresses the matter of surrogacy in terms of traditional surrogacy and gestational surrogacy.
Traditional Surrogacy
Traditional surrogacy refers to when the surrogate mother, who is carrying the baby, is the child’s biological mother. Because the surrogate is the biological mother, she has parental rights. As such, the intended parents are only allowed to adopt the child if the surrogate mother formally agrees to relinquish these rights.
Generally, traditional surrogate mothers are artificially inseminated with the sperm of the intended father, which means that the surrogate is the biological mother.
If the surrogate changes her mind, she and the intended parents will be forever intertwined in relation to the child. For example, the intended parents will likely need to share a parenting time schedule with the surrogate mother and may need to pay her child support.
Gestational Surrogacy
Gestational surrogacy is the process whereby a woman carries a baby to whom she has no genetic connection for someone else. Gestational surrogacy is achieved via assisted reproduction, which involves implanting a fertilized egg through in vitro fertilization (IVF).
In the State of Texas, a woman who is a gestational surrogate does not have the legal right to keep the child she’s carrying – as long as the intended parents have taken the necessary legal precautions to ensure that a binding Texas gestational agreement is in place.
While Texas does not have laws protecting the parental rights of intended parents who use traditional surrogacy, there are important laws in place for those who go the gestational surrogacy route, which is far more common. It’s important to note here, however, that if the surrogate mother has the child in a state other than Texas, legal challenges could apply.
Once the Surrogate’s Parental Rights Are Relinquished
Once a traditional surrogate mother relinquishes her parental rights, she no longer has any legal rights to the child. This relinquishment is final, and at this point, the intended parents – typically the biological father and his spouse – become the child’s legal parents. After relinquishment, the biological mother no longer has any legal standing in relation to the child.
It is essential to protect your parental rights when it comes to surrogacy. Work closely with a Killeen family law attorney from the outset to ensure the process goes as smoothly as possible.
When a Sperm Donor Is Involved
Sometimes, a child is born to a surrogate mother who is artificially inseminated with sperm from a sperm donor, which can complicate the matter even further.
If the surrogate mother backs out on giving the intended couple the child, the sperm donor – without an appropriate legal agreement in place – could share financial responsibility for the child. However, legal steps are available that allow sperm donors to establish themselves as donors – not parents.
In other words, surrogacy is exceptionally complicated, and working with a dedicated family law attorney who has the necessary legal savvy is critical.
Important Considerations before Choosing Surrogacy
Bringing a child into the world comes with immense responsibility, immense reward, and immense emotional investment. When you add in the element of a surrogate, it significantly increases the risk of complications in each of the following primary categories:
Ongoing expenses related to child support
Legal risks that can include shared custody
Emotional risks that can be difficult to tally
Before diving headlong into surrogacy, it’s in the best interest of your finances, your parental rights, and your heart to have a seasoned Killeen family law attorney in your corner.
Choosing a Surrogate Mother
The agency you use to find a surrogate mother, the doctor performing the IVF procedure, and your family law attorney will all have recommendations and guidelines concerning choosing an appropriate surrogate.
Basic Guidelines
Most doctors turn to the American Society for Reproductive Medicine (ASRM) for guidelines in relation to choosing a surrogate. ASRM’s guidelines include all of the following recommendations:
The surrogate mother should be at least 21 years old.
The surrogate mother should have delivered at least one live birth that she carried to term.
The surrogate mother should undergo a complete medical history that includes a careful obstetric and lifestyle history as well as a physical exam.
The surrogate mother should undergo an infectious disease screening for a wide range of diseases.
The surrogate mother should be screened for immunity to diseases like rubella.
The surrogate mother should receive counseling that allows her to explore managing her relationship with the intended parents, coping with feelings of attachment to the child, and managing the impact of the surrogacy on her primary relationships and on her job or career.
Sometimes, an agency is involved in the process of locating an appropriate surrogate, but other couples choose their surrogates privately.
Your Attorney’s Perspective
Your family law attorney will bring a legal perspective to your search for a surrogate and, as such, will address all the following important concerns:
Performing a background check on the potential surrogate to ensure she has no troubling criminal history
Delving into the potential surrogate’s past to ensure she’s never been involved in a Child Protective Services investigation
Ensuring that the potential surrogate has never faced allegations of abuse or neglect of any kind
Your attorney will also address the matter of the potential surrogate’s living situation – ensuring that it’s a healthy environment for a pregnant woman.
Who Can Pursue Surrogacy?
A few states, such as California, allow surrogacy based on the biological mother’s vanity, which means that she’s capable of becoming pregnant and carrying a child to term but chooses not to. However, Texas is not one of these states.
In order to pursue a surrogate pregnancy in Texas – with the legal protections that come with gestational surrogacy – the desire for the arrangement must be based on a medical necessity that is supported by medical evidence.
Heterosexual Couples
For heterosexual couples, they need to demonstrate a medical history that precludes the wife from either becoming pregnant or safely carrying her own child. If there is a physical or emotional complication that prevents the woman from doing so, surrogacy becomes an option. Examples of viable complications include the following situations:
A woman who has repeatedly miscarried
A woman who was ultimately unsuccessful at becoming pregnant after years of attempts, including IVF
A woman whose mental health provider believes the stress of pregnancy would prove deleterious to her
Same-Sex Couples
Same-sex couples have the same legal rights to surrogacy as other couples in Texas do. When the couple is two men, the component of medical necessity is well established. When the couple is two women, one of them generally carries the child. Only if neither of the women is medically able to carry a child would surrogacy be an option.
If the Child Is Born in Another State
The matter of where a child is born by surrogate is an important choice because surrogacy laws vary from state to state. For example, some states don’t recognize surrogacy orders from other states, and some deem certain kinds of surrogacy illegal. If a surrogate mother delivers the child in a state with different laws, it can spell serious legal complications for the intended parents.
It’s important to note that it is extremely rare for a gestational surrogate to keep the child she carried but has no biological connection to, but it has happened in the United States, which is reason enough to ensure that you take all the necessary legal precautions prior to choosing this path toward parenthood.
Make sure to work with a skilled Killeen crminal divorce attorney to ensure that your parental rights are fully protected.
The Surrogacy Process
While every surrogacy journey is unique to the people and circumstances involved, the basic steps forward do not vary.
Establishing Your Surrogacy Budget
There is no denying that surrogacy is costly. To begin, having a baby is expensive from a strictly medical perspective, and you’ll need to cover these costs – that would be covered by your health insurance policy if you carried the child yourself – for your surrogate. Intended parents often purchase health insurance coverage for their surrogates. Other budgetary considerations include the following factors:
The surrogate’s compensation – as applicable
The cost of the surrogate’s IVF procedure
The cost of going through an agency – as applicable
Any living expenses for the surrogate mother that you’re responsible for
Any costs related to the surrogate mother’s inability to work
The legal expense related to ensuring that your parental rights are well protected
These expenses may be in addition to the cost of your own IVF procedures prior to opting for surrogacy.
Choosing the Surrogate
If you’re not making private arrangements for surrogacy with someone you know and trust, you’ll likely work with a surrogacy agency. Reputable agencies can help streamline the process considerably, not only by helping you connect with a surrogate who is a good match for you but also by providing you with referrals for the appropriate medical professionals.
Drafting the Gestational Contract
Your practiced family law attorney will draft a gestational contract for you that specifically address all the concerns that relate to your unique situation, including all the following factors that apply:
The fees and expenses that you’ll be paying
The number of embryos that will be transferred during each attempt
The kind of medical insurance that is in place or that will be purchased
The expectations of the surrogate mother and the intended parents once the child is born
The amount of time the surrogate mother will be allowed with the child for emotional closure
If the surrogate mother will receive pictures of the child and letters from the family
Each party’s expectations regarding pregnancy termination – if it becomes a concern
As the laws related to abortion continue to tighten in Texas – and the country at large – concerns and expectations related to abortion become that much more relevant.
Reviewing and Signing the Contract
Once the gestational contract is drafted, the intended parents generally review it first. Once they have approved the contract, it goes to the surrogate mother. Revisions, if any, are then made. Once all parties are in agreement, the contract is signed.
Notifying the Agency or Physician
Once an agreement is reached, the surrogacy agency or the IVF doctor – if the surrogacy was arranged privately – is notified that both sides, along with their respective attorneys, have reached an agreement on the matter.
Obtaining a Pre-Birth Order
While the intended parents can obtain a pre-birth order before the surrogate becomes pregnant, many opt to do so after the fact. This choice is a matter to carefully discuss with your accomplished attorney because waiting can lead to legal risk.
In Texas, the gestational agreement isn’t validated until the court issues an order that identifies the intended parents as the child’s parents. Keep in mind that not every state recognizes pre-birth orders that originate in Texas.
Completing the Process
The final steps in the surrogacy process include the following events:
The child is born.
The birth notice, which is pursuant to the court’s pre-birth order, is filed.
The court files a second order confirming that the intended parents are the child’s parents.
The surrogate mother relinquishes the child – if she hasn’t done so already.
An Experienced Killeen Family Law Attorney Can Help
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a distinguished family law attorney with the legal know-how, experience, and insight to help you smoothly navigate the surrogacy process. Learn more by contacting us online or calling us at (254) 781-4222 today.