An introduction to the laws of Assisted Reproductive Technology (ART) in the State of Texas

Generally, is Texas friendly to ART?  Yes, Texas is generally very ART friendly for married couples and singles, for unmarried couples, not so much. 

Is Texas friendly to non-married couples?  No, Texas state law requires that if two people are intended parents through gestational surrogacy, they must be married. 

Is Texas friendly to LGBT families?  Yes—mostly. Texas state law allows for married LGBTQ+ Intended Parents to have children through gestational surrogacy. Many judges in the major urban areas are LGBTQ+ allies, which allows knowledgeable ART attorneys (such as ///A ART Fellows) to get the needed pre-birth orders. However, there are still pockets of prejudice throughout Texas, especially in rural areas. Same-sex couple Intended Parents who have pre-birth court orders (also known as interlocutory orders) will be fine under the law, but might potentially get some side-eye in some parts of Texas. 

Is Texas friendly to a single intended parent?  Yes—mostly. Texas state law says that if two people are Intended Parents, they must be married. The law does not require that there be two Intended Parents. However, some judges might read the law otherwise. Knowledgeable ART attorneys (such as ///A ART Fellows) will know which judges in which counties to approach in cases where there is a single Intended Parent. Our statute is ambiguous 

Does Texas have statutes in place for surrogacy?   Yes, for GESTATIONAL surrogacy (not for traditional/genetic surrogacy) 

Does Texas have an embryo donation statute?  Not exactly but embryo donation is listed as part of the definition of “assisted reproduction” in our statutes. Also, there is a Texas statute about donors generally not being parents. 

Does Texas have an egg donation statute?  Not exactly but egg donation is also listed in the definition of “assisted reproduction.” Also, there is a Texas statute about donors generally not being parents. 

Is gestational surrogacy (third party gamete use) permitted in Texas?  Yes 

Is traditional surrogacy (use of the surrogate’s genetic material) permitted in Texas?   Maybe. Traditional surrogacy is not banned in Texas, nor allowed by statute, but the law states that a traditional surrogacy agreement may be unenforceable. However, it also states that some portions of an agreement might perhaps be enforceable. Such agreements have much higher legal risk, and would likely need to involve a post-birth termination of the surrogate's parental rights and adoption by a non-biological intended parent. Many judges will not grant a pre-birth parentage order for traditional surrogacy. In practice knowledgeable ART attorneys (such as ///A ART Fellows) handle these as adoptions (but they are higher risk and some attorneys will not do them at all). 

Is compensated (paid) surrogacy allowed by Texas statute?  In practice?  Our statute is silent on compensation but it is common in practice. However, under Texas law, a parent has the right and duty to support their child during pregnancy. It is allowed in practice. 

Is uncompensated (expense reimbursement only) surrogacy allowed by Texas statute?  In practice?   Our statute is silent on compensation but altruistic surrogacy is common in arrangements between family/friends. 

Does Texas only permit a Carrier to be reimbursed for expenses (altruistic)?  We don’t have such a limitation. Allowed in practice. 

Are surrogacy agreements in Texas enforceable, void or prohibited?   Gestational surrogacy agreements are enforceable once they are validated by the court and do have to meet certain prerequisites to be validated. In Texas, traditional surrogacy agreements may be unenforceable in part and enforceable in part, but are not prohibited. 

Do both Intended Parents both have to be genetically related to the child?   No 

Does Texas require at least one Intended Parent to be genetically related to the child?  No 

If a single intended parent uses surrogacy in Texas, do they have to be genetically related to the child? No 

Do the Intended Parents in Texas have to be married?   If you have two Intended Parents, they must be married to each other. 

Do two Intended Parents in Texas have to be opposite genders?  Our statute does not specify this and most knowledgeable ART attorneys (such as ///A ART Fellows) have done many cases for same sex married couples. 

Does Texas allow pre-birth parentage orders to be issued for surrogacy?  For Texas gestational surrogacy meeting the requirements, yes. Probably not for a Texas traditional surrogacy. 

Does Texas only allow a post-birth parentage order to be issued?  In gestational surrogacy, we have both a pre-birth and post-birth order. Post-birth adoption or parentage order will probably be the case for traditional surrogacy.
 

Can you obtain both a pre and post birth order in Texas for the same child?   Yes. Our Texas gestational surrogacy statute provides for both on the same child. 

Can you obtain a parentage order if only the carrier resides in Texas?   Yes. Texas requires either the carrier OR the intended parent(s) to have lived in Texas for 90 days. 

Can you obtain a parentage order if only the intended parents reside in Texas?  Yes. Texas requires either the carrier OR the intended parent(s) to have lived in Texas for 90 days. 

Can you obtain a parentage order if only the birth occurs in Texas?  Probably not if neither the carrier nor the intended parent(s) reside in Texas, however, this would depend on the judge's analysis of jurisdiction. 

Can you obtain a parentage order if only the medical procedures/IVF Clinic is in Texas? Probably not if neither the carrier nor the intended parent(s) reside in Texas, however, this would depend on the judge's analysis of jurisdiction. 

What is the basis for venue in Texas?   Waiver of venue is generally permissible for surrogacy in Texas, meaning that so long as the court has jurisdiction (at least one party resides in Texas), then all parties can submit to the venue in a surrogacy-friendly county with a surrogacy-friendly friendly judge. This tends to be in the urban areas, and tends to be near to the attorney hired. 

Do results vary by venue?   Possibly. Some smaller, more rural counties are less familiar with surrogacy, and may be less open to LGBTQ+ families. This is why most knowledgeable ART attorneys (such as ///A ART Fellows) avoid certain counties/judges and prefer other counties/judges. 

Is a hearing required for a parentage order?   It depends on the county and judge. Especially post-COVID, these cases are often "heard" by submission, meaning we can get orders without a hearing using affidavits in lieu of live testimony. Some judges might require a live or Zoom hearing. Zoom is likely to be permitted if Intended Parents are out-of-state. This varies by county/venue. 

Does Texas have a passport office?   Yes 

How long does it take to obtain a birth certificate in Texas?   This depends but for a newborn often it can be obtained by going in person to the appropriate vital statistics office several days after birth. If there is a need for an edited/amended/supplemental birth certificate, e.g., after traditional surrogacy, that can take several months even if "expedited." 

Will Texas vital records honor a parentage order from another state?  Probably, although it may depend on whether the hospital will accept it or not. 

Does Texas vital records office require a parentage order from another state to be registered?   Probably not. 

How does the Texas birth certificate list same-sex parents?  Each parent can pick whether to be listed as mother/father/parent. E.g., father and father for one family; mother and parent for another family. 

Can an initial Texas birth certificate be obtained naming the biological parent and the carrier?  Potentially. This could be the result of traditional surrogacy. If it were helpful in some way (e.g., international), it might be possible in gestational surrogacy. However, not ideal for most U.S. surrogacies because then we would not follow the pre-birth order process and it would likely mean having to terminate the carrier’s right by court order and a step/second parent adoption for the non-biological parent (if any).  

Can the Texas birth certificate be amended to include only the biological parent or both intended parents?   Yes, by appropriate court order, but it takes several months. 

Do the Texas amended birth certificates say “amended” on them?  I do not think so – at least they do not in adoptions.

Can intended parents in a Texas surrogacy obtain an adoption order?  Probably, if needed, depending on the specific circumstances. 

Assisted Reproduction law and surrogacy involves many complex issues.  Parties who are contemplating engaging in a surrogacy arrangement in the state of Texas should not rely exclusively on these printed responses.  All these issues should be discussed with a Texas ART attorney who is experienced in surrogacy law.  Answers to these questions will be impacted by numerous circumstances that are unique to your surrogacy arrangement.