In Texas, gestational surrogacy is permitted by Texas by Tex. Fam. Code§ 160.751 through § 160.763. It authorizes gestational surrogacy for married intended parents who follow the procedures specified in the statute, including having their Gestational Surrogate Agreement validated by a court before birth.
Traditional (genetic) surrogacy in Texas requires a termination of parental rights, the establishment of paternity and/or an adoption. Everything is filed after the child is born.
No specific legal requirements exist to serve as a gestational surrogate in the state of Texas.
Parentage Orders: Courts in Texas do grant pre-birth orders, as long as it is done in compliance with the statutory validation procedure.
The conditions under which intended parents could be declared legal parents with a pre-birth order are listed below:
*Some courts may allow, even though the statute specifically references a married couple.
For intended parents who are in no way related to the resulting child, the conditions under which intended parents could be declared legal parents with a pre-birth order are listed below:
Yes
*Some courts may allow
°Yes, if married
Parental listing on a birth certificate depends on marital status. If married, both parents are named on the birth certificate and can choose “Parent and Parent” or “Father and Father.” If not married, only the biological parent is named on the birth certificate.
An international same-sex male couple can obtain a birth certificate listing the biological father and gestational surrogate as parents; however, the Intended Parents would not be named as parents of the child pre-birth. This protocol would require a post-birth parentage action, and in some jurisdictions, a subsequent adoption. A later amended version can list the two fathers as the legal parents. It can be expedited by the child being born in state, if the parents are married.
Same-Sex couples are treated exactly the same as heterosexual couples.
If a heterosexual couple was using their own gametes, then a termination of the gestational surrogate’s parental rights and a post-birth parentage Order could establish parentage.
If not using their own gametes, then a termination of the gestational surrogate’s parental rights and a post-birth parentage Order and Adoption Order could establish parentage.
Tex. Fam. Code§ 160.702 absolves egg or sperm donors of parental rights, stating, “A donor is not a parent of a child conceived by means of assisted reproduction.”
David C. Cole
Law Office of David C. Cole, P.C.
3631 Fairmount Street, Suite 201
Dallas, Texas 75219
Phone: 214.363.5117
Fax: 214.265.0075
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