Married vs. Unmarried: Surrogacy in Texas

How Marital Status Matters

Texas surrogacy law (Family Code Chapter 160, Subchapter I) provides a clear legal path for married intended parents to be named on the birth certificate through a validated gestational agreement. For unmarried intended parents, the path requires additional legal steps.

Understanding these differences early helps you choose the right legal strategy and avoid surprises later in your journey.

For Married Couples

Married couples (including same-sex couples) have the most straightforward legal path in Texas:

• You can enter a gestational agreement under Chapter 160
• The agreement is validated by the court before embryo transfer
• Both spouses are automatically recognized as legal parents
• A pre-birth order names both parents on the birth certificate
• No adoption proceedings are needed

This process is well-established in Texas courts and typically proceeds smoothly with experienced legal counsel.

For Unmarried Couples

Unmarried couples face additional complexity because Texas's gestational agreement statute requires the intended parents to be married. However, legal options exist:

• Marry before signing the agreement — Some couples choose to marry (even informally) to qualify under Chapter 160. Texas recognizes common-law marriage.
• Genetic parent + second-parent adoption — The genetic parent is established through DNA testing, and the non-genetic partner completes a second-parent adoption.
• Parentage action — In some counties, attorneys have successfully obtained parentage orders for both unmarried parents outside the gestational agreement statute.

The best approach depends on your county, your attorney's experience, and your specific situation.

For Single Intended Parents

Single intended parents cannot use the gestational agreement statute (which requires a married couple). Common legal approaches include:

• Establishing parentage through genetic testing (for the genetic parent)
• Court orders establishing parentage
• Post-birth adoption proceedings (in some cases)

Working with an attorney experienced in single-parent surrogacy in Texas is essential. The process is achievable but requires careful planning.

Same-Sex Marriage in Texas

Since the 2015 Supreme Court decision in Obergefell v. Hodges, same-sex marriage is recognized in all 50 states, including Texas. This means married same-sex couples have the same legal standing as married heterosexual couples for surrogacy purposes.

If you're in a committed same-sex relationship but not married, getting married before entering a gestational agreement significantly simplifies the legal process in Texas.

Protecting Your Parental Rights

Regardless of marital status, take these steps to protect your parental rights:

• Work with an experienced attorney — Not just any family law attorney, but one with specific surrogacy experience in Texas.
• Get a pre-birth order — When possible, establish parentage before the baby is born.
• Consider confirmatory adoption — Even with a pre-birth order, a confirmatory adoption provides additional protection that is recognized in all states.
• Keep documentation — Maintain copies of all legal agreements, court orders, and genetic testing results.

Our Recommendations

• If you're unmarried and considering surrogacy in Texas, consult with a surrogacy attorney before starting the process
• Consider marrying (if applicable) to access the simpler gestational agreement path
• Choose an agency experienced with your specific family structure
• Budget for potentially higher legal fees if your situation requires additional court proceedings