Yes, surrogacy is legal in Texas, but the rules are detailed and you must follow specific statutory requirements to ensure the arrangement is valid. Texas law allows gestational surrogacy (where the surrogate carries an embryo with no genetic link to her) under a written agreement that meets strict criteria. Traditional surrogacy (where the surrogate is genetically related to the child) is not prohibited, but the legal protections are much weaker and the risks are higher.
What the Texas Statutes Say
In Texas, the law governing surrogacy is found primarily in the Texas Family Code § 160.751 et seq.. For example, Section 160.751 defines a “gestational mother” as a woman who gives birth to a child conceived under a gestational agreement. Section 160.752 allows an intended parent and a gestational mother to enter into a written agreement “providing that the gestational mother will carry a child conceived by assisted reproduction” and that the intended parents will become the parents of the child.
Under Section 160.756, the statute sets out conditions such as:
- The intended mother must be unable to carry a pregnancy to term or do so with risk to her health or the health of the child.
- Both parties must be represented by independent legal counsel.The agreement must be in writing and signed by all parties.
So yes: Texas law sets out a regulated framework for gestational surrogacy that, when properly followed, gives strong protection for intended parents and the surrogate.
Who Can Participate & What Are the Restrictions
Intended Parents
Typically, the statutes assume the intended parents are married. However, in practice, courts have sometimes allowed unmarried intended parents to obtain pre‐birth parentage orders.
The intended parents must meet health and fertility requirements—often demonstrated via medical documentation that the woman cannot safely carry or give birth.
Surrogate (Gestational Mother)
The surrogate must undergo medical evaluation and often has criteria: for example, she may have already carried at least one successful pregnancy and delivery. Some sources say the surrogate must be married or include her spouse if married.
The contract must specify things like medical risks, financial responsibilities, embryo source, and parental intent.
Traditional Surrogacy
Texas law does not forbid traditional surrogacy (where the surrogate is genetically linked to the child), but it doesn’t provide the same statutory safeguards as gestational arrangements. In such cases, the surrogate may legally be the mother and a post‐birth adoption may be required.
Pre-Birth Orders & Legal Parentage
One major advantage of a proper gestational surrogacy agreement in Texas is the ability to obtain a pre‐birth parentage order. This means that the intended parents are legally declared the parents of the child before birth, and their names will appear on the birth certificate.
This process helps avoid the often complex and costly post‐birth adoption process that might be needed in other states or for less formal arrangements.
Is Commercial / Paid Surrogacy Allowed?
Yes—Texas law permits compensated surrogacy under the gestational agreement framework. The statute allows the surrogate to be reimbursed for expenses and to receive compensation, provided the agreement is valid and meets all statutory requirements.
That said, compensation must be handled carefully and transparently, with legal oversight, to ensure the contract remains enforceable.
What You Must Do to Stay Legal & Avoid Risk
To make sure a surrogacy arrangement is lawful in Texas:
- Work with an experienced surrogacy attorney. The law states that all parties should have independent legal counsel.
- Draft a detailed written gestational surrogacy agreement ahead of embryo transfer that meets statutory requirements.
- Ensure the surrogate and intended parents meet all medical, residency and legal criteria (for example, the surrogate may need to have resided in Texas for a period; one source mentions a 90‐day residency requirement.)
- Secure a pre‐birth parentage order so intended parents are on the certificate at birth.
- Avoid informal or “DIY” traditional surrogacy contracts that may leave intended parents unprotected.
- Keep full documentation of medical decision‐making, legal counsel, compensation, and compliance with the agreement.
Why Texas Is Considered “Surrogacy-Friendly” Compared to Some Other States
Texas is often cited as one of the more favourable states for surrogacy, particularly for gestational surrogacy, because it provides a clear statutory path for intended parents, including same‐sex couples and international intended parents (under certain conditions).
Unlike some states that ban or heavily restrict surrogacy contracts, Texas allows them under defined rules and offers enforceability and pre‐birth parentage protection. Because of this, many surrogacy agencies and intended parents choose Texas as a jurisdiction of choice.
Final Answer
Yes, it is legal to pursue gestational surrogacy in Texas. But it’s not as simple as saying “we’ll just do it.” You must meet all statutory criteria, use a proper gestational surrogacy agreement, obtain legal counsel, and secure a pre‐birth parentage order. Traditional surrogacy is possible but carries more risk due to fewer statutory protections. If you’re considering surrogacy in Texas, it’s wise to consult a qualified reproductive or family law attorney to guide you through the legal steps and ensure your rights are protected.
