What is Gestational Surrogacy?


Gestational surrogacy is a process of taking an egg and sperm from a couple wanting a child, fertilizing the egg in a laboratory, growing an embryo, and then implanting the embryo into another person's uterus to carry the baby to term. A colloquial term is "rent-a-womb". The person having the womb that is "rented" is considered a surrogate because that person is not an actual parent, but is a substitute or surrogate parent and will have no legal rights to the child. Since gestation is the term for growing a child in a uterus, the term gestational surrogacy was born for a substitute womb for gestation.

If you and your partner are thinking about having a child through surrogacy, it can be difficult to determine what type of surrogacy is legal in your area. In the state of Texas, only gestational surrogacy is considered a valid and legal form of surrogacy. This means the surrogate mother cannot use her own eggs in the pregnancy. The eggs must come from an eligible donor or from the female partner seeking a surrogate.

A surrogate cannot use her own eggs because, if she is married, her husband is automatically presumed to be the father of the child. This has the potential to cause obvious problems in determining who is the legal father of the child.

The Gestational Agreement

Because surrogacy is a delicate subject that can potentially go wrong if any of the parties involved have a change of heart, the Texas Family Code has strict guidelines all parties must agree to before surrogacy will be considered. The prospective surrogate, her husband (if she is married), the sperm or egg donors (if there are any), and the intended parents must enter a legal written agreement.

The gestational agreement must show:

  • The potential surrogate mother agrees to the pregnancy by artificial production;
  • The potential surrogate mother, her husband (if she is married), and the sperm and egg donor (if here are any) surrender all parental rights of the child or children conceived through the surrogacy;
  • The intended parents will be the legal parents of the child or children; and
  • The surrogate mother and each intended parent agree to exchange information throughout the pregnancy regarding the health of the surrogate mother and the child or children she is carrying.

The gestational agreement must be completed before the 14th day before the transfer of the embryo, sperm, or egg occurs. There are also a few guidelines a potential parent couple must adhere to before they can be considered for surrogacy.

The guidelines for surrogate parents include:

  • The intended parents must be married;
  • The surrogate mother may not use her own eggs; and
  • The child may not be conceived through sexual intercourse.

Medical Information

Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), personal medical information cannot be shared with a third party if the third party is not part of your immediate family. If the gestational agreement does not specifically state what the medical provider can and cannot share with the parents during the surrogacy process, it can result in serious legal implications.

A physician must also share the potential health risks and success rates of the medical procedure with all parties involved before the surrogacy officially begins. This ensures no one is coerced into entering the agreement under false pretenses.

The gestational agreement should state:

  • The rate of successful conceptions and births resulting from the procedure including the most recent published statistics of the procedure performed at the chosen facility;
  • The potential risks associated with implantation of multiple embryos including the possible multiple births that could result from the procedure;
  • The possible expenses related to the procedure;
  • The potential health risks associated with fertility drugs that may be used during the procedure, egg retrieval, and egg or embryo transfer; and
  • The foreseeable psychological effects that could occur after the procedure.

The health of the surrogate and her embryo(s) should be the highest priority during a gestational surrogacy. It’s important for a potential surrogate to be completely aware of any and all health risks associated with carrying a child. With so many parts to a gestational agreement and so many parties involved, it’s important that you consult an adoption attorney who has experience handling surrogacy cases.

Contact Camille Borg Law, PLLC

Our attorneys have the compassion needed to help you through the gestational surrogacy process. They can use their extensive knowledge as an attorney to help with your gestational surrogacy case from start to finish.

Call our family law firm at (469) 646-7763 or contact us online for a case evaluation.

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