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Surrogacy and Gestational Agreements
Posted By Laci Bowman || Mar 23, 2015
Infertility is seldom discussed, but often experienced by so many couples. Thanks to the contributions of our medical professionals, infertility problems can be addressed and oftentimes result in a traditional birth experience. Even if a married couple is unable to give birth to child, the couple is not limited to the option of adoption. For those parents that choose to have a child, but are unable to give birth to the child, the couple can enter into an agreement with a surrogate or gestational mother to have a child for them. A “surrogate” or “gestational” mother is someone who bears the child for the intended parents. Texas has set forth specific steps that must be followed for the parties to enter into an enforceable “gestational agreement” to protect the potential parents and the gestational mother.
Before an intended parent can enter into an enforceable gestational agreement, the “intended parents” must be married to each other.
On a very basic level, the parties to a gestational agreement must be: (1) the gestational mother and her husband, if she is married; (2) the egg donor, if someone’s eggs are used other than the intended mother; (3) the sperm donor, if someone other than the intended father; (4) the intended parents of the child.
The agreement will set forth the understanding that the gestational mother and all donors other than the intended parents relinquish all parental rights and duties with respect to a child born through assisted reproduction. Additionally, the gestational mother and each intended parent will agree to exchange all relevant and important information concerning the health of the gestational mother and each intended parent during the period covered by the gestational agreement.
A pre-requisite to entering into a valid and enforceable gestational (or “surrogacy” agreement) requires the court to find that the intended mother is unable to carry a pregnancy to term and give birth, or that such birth would cause her or the child unreasonable risk. Additionally, the gestational mother must have had at least one prior pregnancy and delivery, and that the pregnancy would not put her at risk
An enforceable gestational agreement requires that the eggs used in the assisted reproduction procedure are retrieved from an intended parent or a donor - the gestational mother’s eggs may not be used in the assisted reproduction procedure. A gestational agreement does not apply to the birth of a child that is conceived through sexual intercourse.
The agreement must set forth, and requires the physician performing the assisted reproduction procedure to discuss, specific rates of successful conception and other health and psychological risks associated with the procedure. Other issues that the agreement must address are health costs associated with the pregnancy, whether a social study should be conducted to find that the intended parents meet the standards of fitness applicable to adoptive parents (unless the Court waives this requirement), and that each person to the agreement voluntarily enters into and understands the agreement.
A gestational agreement must be signed a minimum of 14 days prior to the date of the transfer of the donor eggs, sperm, or embryos.
Gestational Agreements are a great option for couples that find themselves unable to carry a pregnancy to term, or who are facing severe risks if a pregnancy is carried to term. If you are considering a surrogacy arrangement, discuss your options with your health care professional. In addition, it is very important to choose the right family lawyer to help you draft and establish a valid, enforceable Gestational Agreement.
For further information about surrogacy and gestational agreements, as well as other family law issues, Board Certified Family Law attorney Laci Bowman and the family law group at Godwin Bowman PC can be a valuable source of assistance. You can reach her direct line at 214-939-4468.