When is the mother not the mother?

The Texas Family Code in section 160.201 sets forth the requirements to establish the parent child relationship. In certain situations, the establishment of paternity is rebuttable by genetic testing. Does this rule also apply to the establishment of maternity? Does the law allow maternity to be rebutted by genetic testing?

The parent child relationship is established between the mother and child by:

• 1. The act of the woman giving birth to the child.
• 2. A court proceeding adjudicating the woman’s paternity.
• 3. Or the woman adopting the child.

The parent child relationship is established between the father and the child by:

• 1. An unrebutted presumption of the man’s paternity of the child under section 160.204 of the family code.
• 2. An effective acknowledgment has been rescinded or successfully challenged.
• 3. A court proceeding adjudicating the man’s paternity.
• 4. The man adopts the child.
• 5. The man consenting to an assisted reproduction by his wife that results in the birth of the child.

Assisted Reproduction

Section 160.204 of the Texas Code provides situations where paternity may be rebutted, but other than one exception for woman, who have used the assistance of reproductive technology, there is no provision to rebut the presumption of maternity. A woman and “the intended parents” may enter into a written agreement whereby the woman will give birth to a child conceived via assisted reproduction. In this scenario the parties would use the egg of the “intended mother or another donor,” and the woman relinquishes all parental rights.

However, the agreement must comply with certain requirements and be validated by a court to be enforceable. The Texas Family Code provides that in the event of a validated gestational agreement, the mother-child relationship exists by an adjudication confirming the woman as parent, regardless of the fact that the gestational mother gave birth. However, the parties must comply with certain requirements in order for this agreement to be enforceable. There can be no such agreement if the “intended parents” are not a married couple.

The Texas Legislature has defined a situation where a woman who gives birth to a child is not the mother. The Texas Legislature expressly laid out the criteria in order to exclude the birth mother as the mother of the child. The law does include a provision ensuring that an unmarried man who provides sperm for assisted reproduction by an unmarried woman is the father of a resulting child. Nowhere in the Texas Family Code is there a provision that permits the man to exclude a woman who gave birth as the mother even if a donor egg was used and she has no biological relationship to the child.

What does this mean? That the mother-child relationship established by a woman giving birth is not rebuttable by the results of genetic testing.

If you are dealing with a suit affecting the parent child relationship or a child custody case, you should consult with an attorney. These cases are incredibly complicated and having an experienced child custody lawyer is important. If you have any questions, call the Round Rock Law Offices of Clifford Swayze at 512-920-5080. We serve the following communities in Williamson County including Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.