The Surrogacy Route

Last summer, 21 children—most of them under age 3 and born to different surrogates—were removed from their adoptive =parents’ home in Los Angeles amid abuse allegations. The news sent shock waves among those considering being a surrogate or hiring a surrogate to complete their families.

“That story is unimaginable,” says Kelly McClure, a family law attorney at McClure Law Group in Dallas. “It really tainted a lot for people that need to have surrogacy.”

Although surrogacy laws differ from state to state, Texas’ strict statute is designed to safeguard against such nightmares, say family law attorneys who represent intended parents in surrogacy adoptions.

Surrogacy, says Laura Hayes, a family law attorney at KoonsFuller in Dallas, “is tricky and relatively new. … Across the world and across states, it’s an ever-changing area of law.”

All the more reason to consult with a lawyer experienced in such matters, especially if the surrogate (legally referred to as the “gestational mother”), and the intended parents live in different states with different laws. “Any prospective intended parent considering surrogacy should absolutely meet with an attorney as soon as possible—even in the beginning stages—so they fully understand the process, the procedure and the requirements,” Hayes says.

Most surrogacy arrangements are handled through agencies that conduct medical and psychological screenings of the surrogate, as well as background and financial checks of the intended parents. These companies can be expensive—“easily $100,000,” McClure says—but hiring someone to carry your child on your own can be complicated, and the adoption may be questionable. You also run the risk that the surrogate may change her mind.

The process—from interviewing vetted surrogates to taking your newborn home from the hospital—is not a quick process, lasting from several months to a year depending on the circumstances. The majority of the work, however, is done on the front end, long before the eggs are retrieved from the intended mother or other donor (no other options are legal in Texas), fertilized with the prospective father’s sperm, and transferred to the surrogate’s uterus through in vitro fertilization.

Both attorneys refer to the Texas Family Code surrogacy statute, enacted in 2003, when citing details. Among them: The gestational agreement must first be validated by the court; a doctor must sign an affidavit stating that the intended mother is medically unable to carry a healthy baby to term; the intended parents must be married to each other, the surrogate must have already successfully delivered at least one baby, and a home study of the intended parents has to be conducted unless waived by the court. The adoptive parents will be listed on the birth certificate.

An attorney helps in multiple ways—from making sure the agency that the couple has chosen is legitimate and the surrogate is a good match for them, to reviewing the agency’s proposed contract before embryo transfer and adding pertinent details if necessary.

“There are all sorts of details that are not specifically included in standard agency agreements,” says McClure. “Quite often, that’s why people come to us—because they want to have more control over the pregnancy.”

Questions to address include:

• What if the embryo isn’t viable or the baby isn’t healthy? 
• How do we get updates? 
• Can we go with her to appointments? 
• What if a C-section is necessary?
• Can I be there for the delivery?
• Who pays for what?

Making sure that even your smallest concerns are addressed is worth the time and effort, the attorneys say.

“The contracts are usually more than 60 pages, so it can take a while to make sure that the intended parents understand the whole process, the potential surrogate understands the whole process, and the attorneys get everything negotiated and right,” Hayes says. “Having those conversations early helps address the emotional cost, and makes sure that the intended parents don’t have any issues as soon as the baby is born, and they can enjoy the euphoria of having their child rather than legal concerns.”