For many, becoming a parent is one of life’s greatest joys. Sadly, the process for some can be incredibly challenging. In today’s society, however, there are many paths to achieving that goal. Some couples simply conceive naturally, together, and are able to build their families. Others, due a broad range of circumstances, choose other methods, such as adopting children privately or from agencies and even surrogacy.
Years ago, surrogacy was unheard of, but advances in medical technology have made this method available. That said, it is critical for anyone considering this approach to take the time and make the appropriate efforts to ensure its legality. Missteps can be incredibly costly, both financially and emotionally.
Understanding Surrogacy
Knowledge Is Power
What is surrogacy? The definition of this medically and legally complex process is actually quite simple. When one woman agrees to carry a baby for another person, she is known as a surrogate.
Gestational and traditional, the two different types of surrogacies, are defined below.
- Gestational: This surrogacy process leverages in-vitro fertilization (IVF) and does not use the eggs or any genetic material of the surrogate. Thus, the baby has no biological ties to the woman who gives birth.
- Traditional: In this process, the surrogate is actually the biological mother. This means that her eggs are used and are fertilized with either the father’s sperm or the sperm from another (sometimes anonymous) donor. Doctors use artificial insemination for this type of surrogacy.
Also known as pre-planned adoption, those considering embarking on surrogacy to grow their family should contact a seasoned adoption attorney experienced in surrogacy agreements. Texas law is incredibly detailed and complex. Without a doubt, the guidance of a professional who explains the intricacies and helps create a legally binding contract is clearly in your best interests.
It is important to recognize that in Texas, LGBTQ families can also become parents through surrogacy agreements. There are no laws prohibiting this.
Six Essential Pieces of a Pre-Planned Adoption Agreement
While surrogacy is legal in Texas, the road to a successful conclusion is often filled with countless twists and turns. The decision to move forward with this process is one that requires considerable thought and professional guidance. The combination of medical and legal requirements are costly, both emotionally and financially.
Your Adoption Attorney Can Make Sure You Check All the Boxes
Without a doubt, entering into a surrogacy agreement is a serious action, one to which you have likely given significant thought. Making sure you understand the legalities of this decision is critical as it impacts the future of your family. One of the most important things you must do is create a pre-planned adoption agreement.
Drafted with the assistance of an adoption attorney, this document is a comprehensive contract designed to finalize the myriad of issues that can occur when individuals are pursuing surrogacy to grow their family. These agreements should include several different components. Six of the most essential are:
- Date and Identifying Information of Birth Parent(s) and Adoptive Parent(s): Your contract should include the date on which the agreement was drafted and signed by all parties. Additionally, it should clearly outline the parties entering the agreement, including the surrogate and her spouse (if married), the intended adoptive parents and any donors (see below).
- The Sources of the Gametes: Legally, a surrogacy contract must state the sources of the eggs and sperm used in the surrogacy. However, if either the egg or sperm comes from an anonymous donor, no further information regarding the donor is needed.
- Coverage of Medical Expenses: Your contract must disclose how you plan on paying for the medical expenses of the surrogate and the child/children that result from a surrogate pregnancy. For example, it may include information on your healthcare plan and its provisions regarding surrogate pregnancies.
- Compensation: Texas law does not prohibit paying for the services of a surrogate. In fact, surrogate mothers typically receive a base rate of compensation for the services they provide. This amount covers time spent away from work, travel expenses, expenses related to pregnancy, legal fees, and anything else agreed upon by all parties. Your contract should be comprehensive in its discussion of compensation, when compensation will be paid, and what other terms and conditions apply. Clearly delineating all of this up-front and in writing protects both parties.
- Expected Behaviors of All Parties: Outlining the expectations for the contractual surrogate and the intended parents is one way to minimize misunderstandings and preserve the relationship between the surrogate and the adoptive parents. The agreement may include information regarding the surrogate’s diet and physical restrictions, adherence to medical recommendations, and communication with the adoptive parents. It may also detail who is allowed to be present at prenatal appointments and the birth.
- Plan for Embryo Transfer and Reduction: Pregnancies arising from IVF and other fertility treatments are likely to produce multiple embryos, which is why a pre-planned adoption agreement must specify how many embryos will be transferred and how many pregnancy attempts will be made. They should also specify whether or not a selective reduction will be performed if the pregnancy produces twins, triplets, or more. Your contract should also plan for the possibility of embryos with medical issues.
Making sure your surrogacy contract meets all the points outlined by Texas law is important. If it does, it becomes binding — and Texas courts will uphold it. That said, extreme caution should be entered into surrogacy agreements, as current Texas law allows the surrogate to have up to seven (7) days to rescind the agreement and keep the child.
Additional Information on Adoptions
How Long Is the Adoption Process in Texas?
In Texas, adoption time frames vary depending upon the type of adoption you are pursuing. General adoptions, where you adopt from an agency, take six months to finalize.
However, surrogacy is different. In general, post-birth adoptions are not necessary as the details are determined and agreed upon in the pre-planned adoption agreement. In some cases, second-parent adoption or stepparent adoption may be necessary.
Your surrogacy adoption attorney will let you know if this is an issue in your specific case and, if so, the best way to manage it.
Post-Adoption Contract Agreements
Considerations that Shape the Future
What is ideal for one family may be unacceptable for another. This is especially true when post-birth contact between the surrogate and the child is considered. In many cases, both the surrogate and the parents want to maintain a relationship over time, but the types of relationships vary considerably. Some families simply keep surrogates informed of major milestones through letters; others send photos. Still others agree to direct contact.
Be advised, post-adoption agreements are legally enforceable; take the time to make sure the conditions that you agree upon make sense for you and your family.
Protect Your Future
The Value of Legal Assistance
Complying with the laws governing surrogacy in Texas require experienced legal assistance. In addition to helping you draft your pre-planned adoption agreement, your attorney will leverage their experience, educating you as to possible roadblocks and problems that may occur. When you have this information at the outset, you can be sure to address it early on in the process and incorporate it into your contract. The insight your attorney can provide as you approach surrogacy can save you from potential problems.
Among the services your surrogacy adoption lawyer can provide are drafting and reviewing pre-planned adoption agreements, managing communication between all parties (including agencies, if used), filing all necessary legal forms, coordinating with the hospital regarding birth plans, holding surrogacy funds in a trust account, obtaining necessary post-birth records like birth certificates, and preparing other necessary legal documents specific to each individual case.
The emotions in the surrogacy process are understandably high. Involved individuals want so badly for the contractual process to go smoothly. Their desire to grow their family can sometimes cloud their vision. Having an experienced and knowledgeable professional on your side, who is emotionally uninvolved in the process, is invaluable. They see things clearly, know the law and can provide independent advice and counsel.
Contact a Surrogacy Attorney for Legal Advice and Counsel Today
At Amsberry Law Firm, we firmly believe that there is nothing more important than family. In fact, our practice is dedicated to serving families in Texas with all their family law needs. We have been doing this for almost 30 years. Our surrogate adoption attorneys understand the emotional rollercoaster this process can be.
They have the knowledge and experience to help you navigate the technical and confusing process. We help protect your rights as you grow your family.
There is no doubt that having skilled legal counsel on your side when you’re exploring assisted reproductive technology options is important. Schedule a consultation now by calling the Amsberry Law Firm at (210) 354-2244.
Attorney Russell J.G. Amsberry
Attorney Russell J.G. Amsberry founded the Amsberry Law Firm in 1995 with the goal of providing clients with exceptional, focused representation on their issues. His success as a legal advocate has been reflected in the numerous professional honors he has received, such as speaking engagements and inclusion in Scene in SA magazine’s listing of the best lawyers in San Antonio, a Distinguished rating from Martindale-Hubble, and an amazing rating from Avvo. [ Attorney Bio ]
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