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How Does Texas Treat Gestational Agreements?

Over the past four decades there has been a steady rise of the average age of first time mothers. In 1970 the average age of a first-time mother was 21.4; this number grew to 24.9 in 2000, which increased again to 25.2 in 2009, and again to 26.3 in 2014. The National Center of Health Statistic released these statistics in a January 2016 Data Brief showing this trend. With couples deciding to start families later in life, actually becoming pregnant can often be a common complication. This, coupled with the long standing shortage of adoptable children in this country has led many couples to enlist a gestational mother (previously known as a surrogate) in order to have a child with their own genetic material. This form of assisted reproduction involves at least three people that enter into what is called a gestational agreement (previously known as a surrogacy contract). The terms that the Family Code uses for the parties of these gestational agreements include: "gestational mother" as the woman who gives birth to the child; "donor" as the person(s) who contribute the genetic material for the child; and "intended parents" as the couple intended to raise the child. As with any form of contracting, this has led to disputes and these disputes have led to new law.

This topic has been very controversial over the years. Some states believe that these gestational agreements should be void because, among other things, it seems like contracting for the sale of a child. Other states have found this option to be a viable alternative for couples who could not otherwise have a child, and instead of voiding the contract all together, have chosen to regulate them. Texas has approved the use of gestational agreements, however they are significantly regulated.

The first step in this process is to create a gestational agreement that complies with all the requirements that the Texas Family Code provides. These provisions include the prospective gestational mother, her husband if she is married, and each donor other than the intended parents relinquishing all parental rights and duties with respect to a child conceived through assisted reproduction; the intended parents must be married to each other; and also the agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo. Texas law mandates that a gestational agreement be validated in a court proceeding, and if the agreement is not validated, the result is an agreement that is unenforceable.

This state recognizes that we now have the technology to allow couples who were previously denied the joy of conceiving their own children, to have a child of their own genetic makeup. However, to ensure that this gift is not abused, this state has created laws to protect everyone involved in the gestational agreement. If you have any questions regarding the specifics of a gestational agreement, or you would like to enter into one, call our firm at (940) 891-4800.

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