is Surrogacy Legal in Texas?

Understanding Texas Surrogacy Laws

Will these Texas surrogacy laws affect your ability to have a child through surrogacy or to become a surrogate in TX? Find out which of these surrogacy laws in Texas will impact your surrogacy dreams.

Surrogates and intended parents are welcome to pursue surrogacy in Texas. Gestational surrogacy is legal in the state of Texas and is clearly defined in the Texas surrogacy laws contained in the Texas Family Code, and an experienced surrogacy professional will help guide you through the Texas surrogacy laws so that your process is completed in accordance with all state requirements.

However, surrogacy laws in the United States are complex, and each state’s laws vary. Additionally, the surrogacy laws that apply to your individual situation can vary. For this reason, an experienced surrogacy attorney is needed to protect you and your family through the complicated Texas surrogacy laws you’ll need to meet in your surrogacy journey.

Have questions about surrogacy law in TX? Have legal issues with surrogacy that you’re unsure about? Contact a surrogacy attorney now. The information below is not intended to be used as legal advice, but is instead meant as a general overview of the Texas surrogacy laws that may affect you.

“Is Surrogacy Legal in Texas?”

When first researching the subject, many people aren’t sure about the legality of surrogacy in Texas or in the U.S. They may have heard about the seemingly strict rules and regulations of surrogacy in Texas, or they’ve heard heated arguments discussing “should surrogacy be legal” and “illegal surrogacy” in popular media.

However, surrogacy is legal in Texas, and you can choose to grow your family through surrogacy, or help others become parents through surrogacy here.

“Is Traditional Surrogacy Legal in Texas?”

Traditional surrogacy laws in Texas have made it a difficult option to pursue. Because the surrogate is the biological mother of the child in traditional surrogacy, it’s legally treated like adoption in the state of Texas. This means that a traditional surrogate must wait at least 48 hours after giving birth before she may relinquish her legal parental rights to a child. All surrogacy paperwork must be filed after birth, and there are often restrictions on the base compensation that a traditional surrogate can receive in ways that do not affect gestational surrogates.  Due to the legal and emotional risks it poses, traditional surrogacy in Texas is rare.

However, gestational surrogacy laws in Texas are more favorable; Texas primarily requires that the gestational surrogacy contract be judicially approved prior to the start of the surrogacy process.  Texas gestational surrogacy is the more legally and emotionally safe option, so it’s the most popular option for both intended parents and surrogates today.

“Is Compensated Surrogacy Legal in Texas?”

Yes. There are no commercial surrogacy laws in Texas restricting a gestational surrogate’s ability to receive base compensation in exchange for her time, the physical risks that surrogacy poses, any lost wages, etc. However, it’s illegal to pay a woman in exchange for giving birth to a baby, including gestational surrogates. The compensation that surrogates receive is strictly for their time, effort and participation in the process, and your surrogacy attorney will be sure that your surrogacy contract reflects this important ethical distinction.

“Is Same-Sex Surrogacy Legal in Texas?”

Yes. With the legalization of same-sex marriage in the United States Supreme Court, same-sex couples were also assured the right to the same family-building options as opposite-sex couples. However, current surrogacy laws in TX only apply to married couples (same-sex as well as opposite-sex), although courts will sometimes issue parentage declarations for individuals or unmarried couples.

Learn more about LGBT surrogacy in Texas here.

Create a TX Surrogacy Contract

The most important part of the legal process of surrogacy is the creation of the Texas surrogacy legal contract between intended parents and a surrogate (and her spouse, if applicable). This takes place before the medical process begins, and in Texas, your surrogacy contract will need judicial approval before you can proceed.

In Texas, this contract must be a gestational surrogacy agreement, and must be completed at least two weeks before the embryo transfer process. Within this contract, you’ll establish what you would do in the event of “what ifs” like additional medical procedures, additional IVF cycles, a surrogate becoming pregnant with multiples and more. The contract also outlines compensation for the surrogate, legal parental rights, social roles in the surrogacy process and other important details

Although judicial approval of a surrogacy contract is required in Texas surrogacy law, the contract is sometimes approved during the parentage declaration process, so this won’t happen until later in the surrogacy process. The contract will only be approved in court if:

  • The intended parents have completed their home study
  • The surrogate has had at least one previous pregnancy and is medically confirmed as being capable of carrying another
  • The contract and both parties have described who is responsible for the costs of the process
  • An intended mother is unable to carry a pregnancy to term (if applicable, because not all gestational surrogacies involve an intended mother)

It’s important that the surrogate and the intended parents each have their own separate legal representation. This is necessary for ensuring that each party’s rights are being equally advocated for.

When both parties have agreed on the details within the contract, you can proceed to the medical processes of surrogacy. Often, your attorneys will send a letter to your agreed-upon fertility clinic that states you’ve both signed a formal surrogacy contract and that any child born as a result of the surrogacy procedures is legally the intended parents’ child.

How to Establish Legal Parentage in Texas

Surrogacy laws in TX typically only permit married couples to receive parentage orders, but courts can (and do) sometimes issue parentage orders to unmarried couples or individuals who pursue surrogacy in Texas. Talk to your surrogacy attorney about your individual situation, as establishing parentage can vary from case to case.

Intended parents will rarely need to complete an adoption after birth to establish their legal rights. This will only need to occur in situations where they can’t obtain a parentage order, which is most common with individuals or unmarried intended parents.

Despite the confirmed legality of surrogacy in Texas, the surrogacy laws in Texas can still be complex. You’ll still need to consult with an experienced surrogacy professional before you begin your surrogacy journey.