Texas lawmakers are currently deliberating a proposal that would restrict foreign nationals from utilizing surrogates in the state, elevating a specialized fertility topic into a broader discourse on immigration and birthright citizenship. This issue is expected to be addressed by the Texas Senate health committee, which is slated to hear testimonies regarding the potential ban on foreign nationals contracting with Texas surrogates during a session set for Wednesday.
Lieutenant Governor Dan Patrick has prioritized this examination as an interim charge for the chamber ahead of the legislative session commencing in January. In alignment with this legislative agenda, the Texas Republican Party has recently included a ban on commercial surrogacy for foreign nationals in its platform, stating that such practices allow children born under these arrangements to claim U.S. citizenship.
Surrogacy is a medical process whereby a woman carries and delivers a child for another party, often achieved through in vitro fertilization (IVF). Typically, the surrogate has no biological relation to the child. Notably, the primary users of surrogacy services include families dealing with fertility challenges and LGBTQ+ couples. Experts in surrogacy and related advocacy groups in Texas estimate that arrangements involving foreign nationals account for a minor proportion of the thousands of surrogacy births in the U.S. annually. The lack of official statistics is due to the private nature of surrogacy contracts, which the government does not monitor.
Advocates for surrogacy are concerned that targeting this specific segment of the market may pave the way for broader restrictions, potentially jeopardizing surrogacy opportunities for all Texans. They face various challenges, as the Texas Republican Party is also advocating for the prohibition of public funding for IVF, a key component of surrogacy. Without IVF access, surrogacy becomes significantly compromised.
According to Katy Encalade, the president and CEO of Egg Donor & Surrogate Solutions, it is vital to ensure that discussions surrounding surrogacy reflect the experiences of the one in six individuals facing infertility. She emphasizes that surrogacy is about creating families rather than designing babies. Conservative factions feel confident that the upcoming legislative session will enable them to regulate surrogacy, framing it as a matter of birthright citizenship and national security.
This momentum comes in the wake of Florida's recent law prohibiting surrogacy and adoption contracts involving residents of designated “foreign countries of concern,” including nations like China and Russia. Additionally, Congress is evaluating similar legislation under the Stopping Adversarial Foreign Exploitation of Kids in Domestic Surrogacy Act (SAFE Kids Act).
Concerns regarding foreign involvement in surrogacy have intensified, especially with reports of Chinese nationals utilizing American surrogates. A Wall Street Journal article highlighted a Chinese billionaire fathering numerous children through surrogacy. Last year, a Corpus Christi surrogate narrated her experiences working with a Chinese couple in California, who later faced legal action regarding child endangerment.
The recent rejection by the U.S. Supreme Court of attempts to eliminate birthright citizenship has fueled criticisms from conservative circles. State Representative Brian Harrison is advocating for legislative measures to criminalize birth tourism and cease the issuance of birth certificates to children born to non-citizens. Furthermore, Attorney General Ken Paxton has initiated legal action against a Houston birthing center, accusing it of enabling an influx of foreign nationals for the sole purpose of childbirth.
John Seago, president of Texas Right to Life, inferred that there seems to be a growing willingness to advance legislation targeting commercial surrogacy and contracts with non-U.S. citizens. He argues that prohibiting foreign surrogacy serves as a foundation for establishing stricter regulations within the overall surrogacy industry. His group opposes commercial surrogacy altogether and seeks to impose ethical constraints on the practice.
The Texas GOP platform also supports prohibiting “third-party egg and sperm donations” and the commercialization of human reproduction, which could severely restrict options for individuals unable to conceive with their partners or lacking partners altogether.
In 2003, Texas established its legal framework for surrogacy, allowing biological parents to be recognized as the child's legal parents prior to birth, making it one of the more surrogacy-friendly states in the country. Despite this, recent discussions indicate that surrogacy has escalated beyond being merely a family law concern into a complex political debate about the availability of fertility services in the U.S.
Surrogacy agencies indicate that only 5% of their cases involve foreign nationals, highlighting that such clients are not primarily interested in U.S. citizenship for their children but rather seek a safe and regulated surrogacy process. Stephanie Scott, executive program director of Simple Surrogacy, notes that her clients often prefer the American system due to past difficulties in other countries.
If restrictions on surrogacy are enacted, Texans may be compelled to seek services out of state, leaving those without the financial means at a disadvantage. Christine Henry Andresen, a surrogacy law attorney, posits that changes to Texas surrogacy laws could deter those facing infertility from pursuing surrogacy as a means to start families.
