Family Building—Doing It the Legal Way
by Jenny L. Womack
According to the Centers for Disease Control, millions of women and men suffer from impaired fertility or infertility. For them, becoming a parent often involves the legal system through adoption or, increasingly, through assisted reproduction technology (ART) cases concerning surrogacy or gamete donation. A woman gives birth to a child. Does that make her the child’s mother? Maybe or maybe not. What if you were told the woman was not genetically related to the child? She may still be the baby’s mother if she conceived using an egg donor. Or she may have been serving as a gestational carrier for someone else, using either the intended mother’s egg or a donated egg. What about the father, is the man who provided the sperm the baby’s father? Not if he was a sperm donor.
Under Texas law, donors are not parents. Yet not every man who “donates” sperm (or woman who “donates” an egg) is a donor legally speaking. The Texas Family Code specifically defines a donor as a man or women who provides egg or sperm through a physician for the purpose of assisted reproduction, with a few limited exclusions for husbands who provide sperm for their wives (using IVF for example), men who provide sperm intending to parent the child, or a woman who gives birth to a child through assisted reproduction using her own egg(s). Therefore, using an at-home insemination kit with a friend’s sperm would not make the friend a donor. This friend would have parental rights he could enforce and could be obligated to pay child support, even if he did not intend to parent the child. The same could be said of a surrogate whose egg is used, a process commonly referred to as traditional surrogacy. Details are important and can make all the difference.
When it comes to surrogacy, for example, the Texas Family Code allows parties entering into a gestational agreement to have it validated by a court pre-birth in certain circumstances: the intended parents must be a married couple, the intended mother must be unable to carry or safely carry a pregnancy to term, the surrogate or gestational carrier must have carried at least one previous pregnancy safely to term, and the egg(s) used must not be the gestational carrier’s. But what about single intended parents or LGBT couples? What about traditional surrogacy?
Such cases must be handled very differently and are generally more akin to the adoption process. Regardless of the situation, some type of legal documentation is necessary, usually starting with a contract, whether for egg donation or surrogacy or both. Once again the details are crucial and there are a number of details that must be taken into account, including but certainly not limited to: compensation, payment of expenses, termination of pregnancy or selective reduction, choice of doctor, choice of hospital and so on. A typical gestational agreement is easily 35 pages or more. Furthermore, ART medicine and law are constantly evolving. In fact, at this time there is legislation pending to expand the current gestational agreement statutes to provide for single intended parents as well as married ones.
Intent is also critical when it comes to family building through ART. For example, take the situation where a woman gives birth to a child conceived through artificial reproduction using a donor egg and the sperm of a man who intends to be the father. After birth, the intended father says the woman was just supposed to be a gestational carrier for him and his partner, but the woman claims she and the intended father were supposed to raise this child together. Unfortunately, it appears that neither of them consulted an attorney before having this child so there are no legal agreements documenting the parties’ intentions to support either person’s claims. Consequently, these parties are now facing a contested suit affecting the parent-child relationship to establish parentage as well as custody, possession and access and child support.
Such cases become even more complex when one or more of the parties involved reside in a different state or different country where surrogacy may be more limited or even illegal. In today’s world, family building through adoption or ART is complex and the need for experienced legal counsel is more crucial than ever.
Jenny L. Womack is a solo practitioner. She can be reached at Jenny@WomackAdoptions.com.