Article on ART Children in Texas
What constitutes ―family‖ in American society has changed significantly over the past generation, and Texas law has been slow to adapt.
Increasingly, women and couples are choosing to delay pregnancy beyond medically standard fertile years. Part of this change can be attributed to societal shifts: women seeking careers; fewer entry-level jobs; and adult children moving back in with their parents, thus postponing real ―adulthood. Certainly, statistics have shown that the current generation of childbearing-aged women will have children later in life. Over the last thirty-six years, the average age of first-time mothers in the United States has increased 16.8%. Additionally, the proportion of births from mothers over the age of thirty-five has increased by nearly a factor of eight. In 2006, about one out of twelve first-time mothers were age thirty-five and over compared with one out of every one hundred in 1970.
This trend in delaying childbirth until later in life has increased the frequency of pregnancy complications as women often experience a decline in fertility as they age. Complications that are common for older mothers include a decrease in the number of potential eggs for ovulation, changes in hormones, and the existence of other gynecologic conditions. Any of these fertility complications can interfere with conception. Couples who experience pregnancy complications and fertility issues usually seek alternative means to have a biological child through methods such as hormone therapy, artificial insemination, or Assisted Reproductive Technology (ART).
ART is a specific method of ―surgically removing eggs from a woman‘s ovaries, combining them with sperm in the laboratory, and returning them to the woman‘s body or donating them to another woman. ART does not include an egg stimulation process, such as hormone therapy or medication.12 ART also does not include artificial insemination or treatments that only handle sperm. ART involves procedures with the intention of having eggs retrieved from the female body. The use of ART for women and couples has doubled over the past decade. Because ART methods either return the combined biological material to the original woman‘s body or donate the embryo to another woman, the use of surrogate or gestational mothers has also increased.
With increased use of ART, especially the combining of ART with surrogacy, Texas has taken measures to allow the creation of legal and enforceable gestational agreements to protect intended parents and surrogate (gestational) mothers. However, Texas probate law has yet to catch up with medical reproductive technology, especially in regards to recognition of non-biologically related ART children and the parent-child relationships of these ART children under the Texas Probate Code.
Problems occur with ART children when the resulting child is not biologically related to one or both of the intended parents. For example, if the mother is medically incapable of producing an egg, or carrying a child to term, one solution is to combine ART with the use of a gestational mother, commonly known as a surrogate. Surrogates are usually bound to the intended parents through the use of a gestational agreement. Under the Texas Family Code, a gestational agreement legally binds the resulting to the intended parents, as opposed to the gestational mother, and has been legally recognized as an adjudicated parentage in the state since 2003.
Although legal recognition of gestational agreements is undoubtedly controversial, the reality is that ―medical science has raced ahead of the law without heed to the views of the general public. Courts recognize this issue when forced to deliver decisions based on medically assisted reproduction. Since these children are nontraditional and nonfundamental, they are affected by constraints beyond their control and knowledge. The Uniform Status of Children of Assisted Conception Act addresses ART children as ―without guile or fault . . . these children of the new biology have been deprived of certain basic rights. Texas‘s Family Code, however, addresses the deprived rights of some types of ART children but not under other statutes that have an effect on children‘s inheritance rights.
The issue remains not only who must provide the child with support, and who has rights to the child, but also from whom the child can inherit from under the Texas Probate Code. Because the Texas Probate Code has not fully caught up with the Texas Family Code in the area of intestate inheritance from the intended mother in a gestational agreement, this comment will examine the traditionally less contested parent-child relationship, the relationship between the mother and the child, and the relationship‘s effect on intestate inheritance under Texas law.
In order to adequately address this issue, this comment will first begin with an overview of the history of ART under the law and the present statistical information available on ART children in Texas and across the United States. Second, this comment will address the definition of the mother-child relationship in Texas under the Family Code for the legal purpose of establishing the parent-child relationship, and then examine how the Texas Probate Code defines the mother-child relationship for inheritance purposes between the mother and the child. Third, this comment will demonstrate foreseeable inheritance problems with ART children due to the statutory language differences between the Texas Family Code and Texas Probate Code by use of hypothetical illustrations. The hypothetical situations will illustrate problems that today‘s modern families may face in future years due to the discrepancy between the statutory language in the two Codes. Fourth, this comment will address quick solutions to the foreseeable problems, such as following a formal adoption proceeding, or creating a valid will to protect the ART child‘s right to inherit, and discuss the need for both family and probate lawyers to be aware of the present problem in order to adequately advise their clients. Lastly, this comment will suggest a long-term solution—a proposed amendment to the Texas Probate Code—that will protect ART children‘s intestate inheritance rights.