HB 910 & SB 1324: Surrogate Parent Agreements

HB 910 by Rep. Senfronia Thompson (D-Houston) and SB 1324 by Sen. Kirk Watson (D-Austin) amend the provisions in the Texas Family code that allow people who use surrogate mothers to enter into binding agreements during the pregnancy. Prior to the these provisions being added to Family Code (sec. 160 subchapter H) it was not possible for parents to enter into a binding agreement with surrogate mothers regarding custody of the child. This meant that, up to 90 days following the birth of the child, a surrogate mother could change her mind and take the child away from its parents, even if the surrogate had no genetic relation to the child.

The current law, adopted in 2001, allows legally married couples who reside in Texas to create a binding agreement with potential surrogate mothers (although it requires the consent of the surrogate's husband, if she is married). It does not allow people who are legally recognized as "single" to enter into similar agreements, forcing them to petition for adoption after the birth.

HB 910 and its Senate companion SB 1324 would allow people who are legally recognized as "single" to enter into the same kind of surrogacy agreements currently available to married people. However, the bills specifically prohibit two single people from entering into a joint agreement with a surrogate mother. This means if a same-sex couple chooses to conceive using a surrogate mother that only one of them would have a legal claim to custody of the child until after birth, when the other one could apply for joint custody.

There is a provision in the current statute, added in 2007, that provides that an unmarried man who provides sperm for artificial insemination with the specific intent of becoming the father of the resulting child is legally recognized as the father of the child. So if this legislation becomes law male same-sex couples will still be able to protect themselves if one of them is the sperm donor and the other enters into a binding agreement with the surrogate mother.

HB 910 and SB 1324 are far from perfect. I spoke with a staffer for Rep. Thompson who said that she is aware that the legislation, as currently worded, excludes same-sex couples who conceive using a surrogate. The staffer told me that Rep. Thompson hopes to be able to fix that omission during a later legislative session, but that in the current political climate it would kill the bill which, at this time, has no opposition.