78R368 KLA-F
By: Goodman H.B. No. 729
A BILL TO BE ENTITLED
AN ACT
relating to the adoption of the Uniform Parentage Act regarding
gestational agreements; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 160.602, Family Code, is amended to read
as follows:
Sec. 160.602. STANDING TO MAINTAIN PROCEEDING. Subject to
Subchapter D and Sections 160.607 and 160.609, a proceeding to
adjudicate parentage may be maintained by:
(1) the child;
(2) the mother of the child;
(3) a man whose paternity of the child is to be
adjudicated;
(4) the support enforcement agency or another
government agency authorized by other law;
(5) an authorized adoption agency or licensed
child-placing agency;
(6) a representative authorized by law to act for an
individual who would otherwise be entitled to maintain a proceeding
but who is deceased, is incapacitated, or is a minor; [or]
(7) a person related within the second degree by
consanguinity to the mother of the child, if the mother is deceased;
or
(8) a person who is an intended parent.
SECTION 2. Chapter 160, Family Code, is amended by adding
Subchapter I to read as follows:
SUBCHAPTER I. GESTATIONAL AGREEMENTS
Sec. 160.751. DEFINITION. In this subchapter, "gestational
mother" means a woman who gives birth to a child conceived under a
gestational agreement.
Sec. 160.752. SCOPE OF SUBCHAPTER; CHOICE OF LAW. (a)
Notwithstanding any other provision of this chapter or another law,
this subchapter authorizes an agreement between a woman and the
intended parents of a child in which the woman relinquishes all
rights as a parent of a child conceived by means of assisted
reproduction and that provides that the intended parents become the
parents of the child.
(b) This subchapter controls over any other law with respect
to a child conceived under a gestational agreement under this
subchapter.
Sec. 160.753. ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP.
(a) Notwithstanding any other provision of this chapter or another
law, the mother-child relationship exists between a woman and a
child by an adjudication confirming the woman as a parent of the
child born to a gestational mother under a gestational agreement if
the gestational agreement is validated under this subchapter or
enforceable under other law, regardless of the fact that the
gestational mother gave birth to the child.
(b) The father-child relationship exists between a child
and a man by an adjudication confirming the man as a parent of the
child born to a gestational mother under a gestational agreement if
the gestational agreement is validated under this subchapter or
enforceable under other law.
Sec. 160.754. GESTATIONAL AGREEMENT AUTHORIZED. (a) A
prospective gestational mother, her husband if she is married, each
donor, and each intended parent may enter into a written agreement
providing that:
(1) the prospective gestational mother agrees to
pregnancy by means of assisted reproduction;
(2) the prospective gestational mother, her husband if
she is married, and each donor other than the intended parents, if
applicable, relinquish all parental rights and duties with respect
to a child conceived through assisted reproduction;
(3) the intended parents will be the parents of the
child; and
(4) the gestational mother and each intended parent
agree to exchange throughout the period covered by the agreement
all relevant information regarding the health of the gestational
mother and each intended parent.
(b) The intended parents must be married to each other. Each
intended parent must be a party to the gestational agreement.
(c) The gestational agreement must require that the eggs
used in the assisted reproduction procedure be retrieved from an
intended parent or a donor. The gestational mother's eggs may not
be used in the assisted reproduction procedure.
(d) The gestational agreement must state that the physician
who will perform the assisted reproduction procedure as provided by
the agreement has informed the parties to the agreement of:
(1) the rate of successful conceptions and births
attributable to the procedure, including the most recent published
outcome statistics of the procedure at the facility at which it will
be performed;
(2) the potential for and risks associated with the
implantation of multiple embryos and consequent multiple births
resulting from the procedure;
(3) the nature of and expenses related to the
procedure;
(4) the health risks associated with, as applicable,
fertility drugs used in the procedure, egg retrieval procedures,
and egg or embryo transfer procedures; and
(5) reasonably foreseeable psychological effects
resulting from the procedure.
(e) The parties to a gestational agreement must enter into
the agreement before the 14th day preceding the date the transfer of
eggs, sperm, or embryos to the gestational mother occurs for the
purpose of conception or implantation.
(f) A gestational agreement does not apply to the birth of a
child conceived by means of sexual intercourse.
(g) A gestational agreement may not:
(1) provide for payment of consideration, but may
provide for payment of all reasonable medical, counseling, and life
insurance expenses for the gestational mother; or
(2) limit the right of the gestational mother to make
decisions to safeguard her health or the health of an embryo.
Sec. 160.755. PETITION TO VALIDATE GESTATIONAL AGREEMENT.
(a) The intended parents and the prospective gestational mother
under a gestational agreement may commence a proceeding to validate
the agreement.
(b) A person may maintain a proceeding to validate a
gestational agreement only if:
(1) the prospective gestational mother or the intended
parents have resided in this state for the 90 days preceding the
date the proceeding is commenced;
(2) the prospective gestational mother's husband, if
she is married, is joined as a party to the proceeding; and
(3) a copy of the gestational agreement is attached to
the petition.
Sec. 160.756. HEARING TO VALIDATE GESTATIONAL AGREEMENT.
(a) A gestational agreement must be validated as provided by this
section.
(b) The court may validate a gestational agreement as
provided by Subsection (c) only if the court finds that:
(1) the parties have submitted to the jurisdiction of
the court under the jurisdictional standards of this chapter;
(2) the medical evidence provided shows that the
intended mother is unable to carry a pregnancy to term and give
birth to the child or is unable to carry the pregnancy to term and
give birth to the child without unreasonable risk to her physical or
mental health or to the health of the unborn child;
(3) unless waived by the court, an agency or other
person has conducted a home study of the intended parents and has
determined that the intended parents meet the standards of fitness
applicable to adoptive parents;
(4) each party to the agreement has voluntarily
entered into and understands the terms of the agreement;
(5) the prospective gestational mother has had at
least one previous pregnancy and delivery and carrying another
pregnancy to term and giving birth to another child would not pose
an unreasonable risk to the child's health or the physical or mental
health of the prospective gestational mother;
(6) the parties have adequately provided for which
party is responsible for all reasonable health care expenses
associated with the pregnancy, including providing for who is
responsible for those expenses if the agreement is terminated; and
(7) the amount paid for the gestational mother's
expenses authorized by Section 160.754(g) is reasonable.
(c) If the court finds that the requirements of Subsection
(b) are satisfied, the court may render an order validating the
gestational agreement and declaring that the intended parents will
be the parents of a child born under the agreement.
(d) The court may validate the gestational agreement at the
court's discretion. The court's determination of whether to
validate the agreement is subject to review only for abuse of
discretion.
Sec. 160.757. INSPECTION OF RECORDS. The proceedings,
records, and identities of the parties to a gestational agreement
under this subchapter are subject to inspection under the same
standards of confidentiality that apply to an adoption under the
laws of this state.
Sec. 160.758. CONTINUING, EXCLUSIVE JURISDICTION. Subject
to Section 152.201, a court that conducts a proceeding under this
subchapter has continuing, exclusive jurisdiction of all matters
arising out of the gestational agreement until the date a child born
to the gestational mother during the period covered by the
agreement reaches 180 days of age.
Sec. 160.759. TERMINATION OF GESTATIONAL AGREEMENT. (a)
Before a prospective gestational mother becomes pregnant by means
of assisted reproduction, the prospective gestational mother, her
husband if she is married, or either intended parent may terminate a
gestational agreement validated under Section 160.756 by giving
written notice of the termination to each other party to the
agreement.
(b) A person who terminates a gestational agreement under
Subsection (a) shall file notice of the termination with the court.
A person having the duty to notify the court who does not notify the
court of the termination of the agreement is subject to appropriate
sanctions.
(c) On receipt of the notice of termination, the court shall
vacate the order rendered under Section 160.756 validating the
gestational agreement.
(d) A prospective gestational mother and her husband, if she
is married, may not be liable to an intended parent for terminating
a gestational agreement if the termination is in accordance with
this section.
Sec. 160.760. PARENTAGE UNDER VALIDATED GESTATIONAL
AGREEMENT. (a) On the birth of a child to a gestational mother
under a validated gestational agreement, the intended parents shall
file a notice of the birth with the court not later than the 300th
day after the date assisted reproduction occurred.
(b) After receiving notice of the birth, the court shall
render an order that:
(1) confirms that the intended parents are the child's
parents;
(2) confirms that any payments made by the intended
parents to the gestational mother were reasonable expenses
authorized by Section 160.754(g);
(3) requires the gestational mother to surrender the
child to the intended parents, if necessary; and
(4) requires the bureau of vital statistics to issue a
birth certificate naming the intended parents as the child's
parents.
(c) If a person alleges that a child born to a gestational
mother did not result from assisted reproduction, the court shall
order that scientifically accepted parentage testing be conducted
to determine the child's parentage.
Sec. 160.761. EFFECT OF GESTATIONAL MOTHER'S MARRIAGE AFTER
VALIDATION OF AGREEMENT. If a gestational mother is married after
the court renders an order validating a gestational agreement under
this subchapter:
(1) the validity of the gestational agreement is not
affected;
(2) the gestational mother's husband is not required
to consent to the agreement; and
(3) the gestational mother's husband is not a presumed
father of the child born under the terms of the agreement.
Sec. 160.762. EFFECT OF GESTATIONAL AGREEMENT THAT IS NOT
VALIDATED. (a) A gestational agreement that is not validated as
provided by this subchapter is unenforceable, regardless of whether
the agreement is in a record.
(b) The parent-child relationship of a child born under a
gestational agreement that is not validated as provided by this
subchapter is determined as otherwise provided by this chapter.
(c) A party to a gestational agreement that is not validated
as provided by this subchapter who is an intended parent under the
agreement may be held liable for the support of a child born under
the agreement, even if the agreement is otherwise unenforceable.
(d) The court may assess filing fees, reasonable attorney's
fees, fees for genetic testing, other costs, and necessary travel
and other reasonable expenses incurred in a proceeding under this
section. Attorney's fees awarded by the court may be paid directly
to the attorney. An attorney who is awarded attorney's fees may
enforce the order in the attorney's own name.
Sec. 160.763. HEALTH CARE FACILITY REPORTING REQUIREMENT.
(a) The Texas Department of Health by rule shall develop and
implement a confidential reporting system that requires each health
care facility in this state at which assisted reproduction
procedures are performed under gestational agreements to report
statistics related to those procedures.
(b) In developing the reporting system, the department
shall require each health care facility described by Subsection (a)
to annually report:
(1) the number of assisted reproduction procedures
under a gestational agreement performed at the facility during the
preceding year; and
(2) the number and current status of embryos created
through assisted reproduction procedures described by Subdivision
(1) that were not transferred for implantation.
Sec. 160.764. PAYMENT OF CONSIDERATION; OFFENSE. (a) A
person commits an offense if the person knowingly or intentionally
pays or promises to pay consideration to a prospective gestational
mother with the intent to influence the prospective gestational
mother's decision to enter into a gestational agreement.
(b) An offense under this section is a Class A misdemeanor.
(c) For purposes of this section, consideration does not
include a payment for a gestational mother's expenses authorized
under Section 160.754(g).
Sec. 160.765. ADVERTISING; OFFENSE. (a) In this section,
"advertise" means to solicit or induce through print or electronic
media, including through radio, television, direct mail, or the
Internet.
(b) A person commits an offense if the person advertises
that the person will act as a gestational mother or assist another
person in locating a person to act as a gestational mother.
(c) An offense under this section is a Class A misdemeanor.
SECTION 3. Section 160.103(d), Family Code, is repealed.
SECTION 4. Not later than December 1, 2003, the Texas
Department of Health shall implement the reporting system required
by Section 160.763, Family Code, as added by this Act.
SECTION 5. (a) This Act takes effect September 1, 2003.
(b) The change in law made by this Act applies to a motion or
other request for relief made in a parentage or paternity
proceeding that is commenced on or after the effective date of this
Act. A motion or other request for relief made in a parentage or
paternity proceeding commenced before the effective date of this
Act is governed by the law in effect at the time the proceeding was
commenced, and the former law is continued in effect for that
purpose.