Jenny Womack | Family Formation: A Look at Adoption, Surrogacy and Assisted Reproduction

We’re excited to talk to our guest Jenny Womack of Jenny L. Womack, P.C. in Dallas, Texas. Since 1998, Jenny has helped create happy families by focusing her practice exclusively on adoption, surrogacy, gamete donation and family building. 
Today, we’re sitting down with Jenny to delve deeper into the complex legal processes involved in adoption, surrogacy, and assisted reproduction, including:  

  • The different paths to adoption—what each one offers, what to watch out for, how to help your clients remain within the law and avoid the scams, and special considerations for the LGBTQ+ community
  • Gestational surrogacy vs. traditional surrogacy, plus what goes into gestational agreements and the requirements for validation
  • Key strategies for walking your clients through assisted reproduction, including a look at embryo donation, egg donation, and sperm donation
  • And much more

Mentioned in this episode:


Jenny Womack: Now, I always tell adoptive parents in any scenario, don’t ever agree verbally in writing or otherwise to any kind of contact you aren’t willing to continue. Absent something changing.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Jenny Womack to the Texas Family Law Insiders podcast. Jenny has practiced exclusively family formation law for the past 10 years, handling hundreds of adoptions, surrogacy cases, and gamete donation agreements. She was recognized as an angel in adoption by the Congressional Coalition for Adoption Institute in 2009. And has been a fellow of the Academy of Adoption and Assisted Reproduction Attorneys since 2004, an international organization of experienced attorneys in the field, and she’s currently the president elect of that organization. Jenny helps clients with embryo donation, egg and sperm donation, surrogacy, gestational agreements, and adoptions. Thank you so much for joining us today.

Jenny: Thank you for having me, Holly.

Holly: So why don’t you start by telling us a little bit about yourself?

Jenny: Oh, let’s see. I’m a dog mom. I’m a reader. I’ve been a lawyer since 1998, doing family law from day one. Got into the family formation field in 2001. So I’ve been doing adoptions and surrogacy and things for a long time now. And my practice, as you said, about 10 years ago, I went exclusively to family formation law, and have been very glad I did.

Holly: Yes, I’ve heard your name for many, many years as the go to expert in adoption and surrogacy issues. I think most family lawyers are probably kind of like me, where we dabble in adoption, we do an adoption here and there. But when you do that, there are a lot of pieces that you don’t know. So we are here to to today to chat about some of those intricacies and do some chatting about adoptions.

Jenny: And I get those phone calls from attorneys do them, going what do I need to do? And I’m like, oh, here’s what you do.

Holly: Yes, it’s very important to have people like that, that you can call and figure out what you don’t know. So, um, let’s start by talking about adoptions. I know there’s really a couple different ways you can go if you’re looking to adopt, you can do a private adoption, or you can go through an agency, or I guess there’s a third way of going through CPS in the foster care. So why don’t you kind of explain those different options.

Jenny: So let me start with what is the most common which is probably agency adoptions. And that’s where you work with an adoption agency, which is in Texas, all adoption agencies have to be licensed by the state. And they will match you with a prospective mom or expectant mom. And that can happen early on in a pregnancy, usually not too early. Or it can be a situation where she’s what’s called the drop in, she’s at the hospital delivers and decides she wants to place. So there can be all kinds of things associated there. Cost varies quite a bit. But that is probably the most common scenario is working through an adoption agency.

You can also like you mentioned, you can adopt through the foster care system through CPS, they do have a foster to adopt program. And a lot of people do choose to do that. In those scenarios, with all adoptions, there’s two parts terminating parental rights and the final adoption. In those scenarios, the state handles termination of parental rights. Just like in an agency adoption, the agency handles that. In a private adoption, that is where it is directly between the expectant parents and the the adoptive parents. And in those scenarios, the adoptive parents are the petitioners all the way through. They do the termination, the adoption, obviously, with the assistance of an attorney, ideally.

And in those scenarios there, there are a lot more limitations on that. If, for example, you cannot pay any kind of financial assistance in a private adoption. If you do, it’s a felony for you to pay it. It’s a felony for them to receive it. That can only be done through licensed child placing agencies. So even if you do find a birth mother or expectant mother on your own, if she needs expenses, you’re going to have to run it through an agency. You can’t do it as a private adoption. The biggest trick, of course, with private adoptions is how do you find that expectant mom, that woman who wants to place a child with you?

That can be very difficult, and can also be a little more risky because it’s a little harder. Most adoption agencies are pretty good about screening out scammers. That’s a lot harder to do when it’s just adoptive parents putting themselves out there, whether it’s through social media, through you know, one of the websites specifically geared towards advertising for that. There’s not, they have to kind of do their own screening. And that can be very difficult. It’s a little bit easier to be scammed that way. But it is less expensive. So there’s there’s toss ups to everything.

Holly: So if a potential adoptive parent and a birth mother have connected on their own, one way or another and they want to go through an agency, does the agency then do some of those protective, you know, search, you know, look, trying to weed out, and all of that.

Jenny: Yes. Because yeah, if you put it if you have to run it through an agency, you know, they found themselves but she needs financial assistance, she needs help with rent, or groceries or gas money or whatever. And you have to run it through an agency, the agency under their regulations that they’re licensed under has to have a certain amount of contact with the birth parents, you know, and so they are physically laying eyes on her, they are going to be getting releases and talking to doctors offices and trying to make sure she’s going to the doctor, if she isn’t getting prenatal care. They do try to get her into prenatal care if they can. If she doesn’t have her Medicaid or whatever, they try to get that set, help her get that set up, all of those kinds of things.

So they, that usually helps, you can’t always prevent a situation where she’s pregnant and potentially working with more than one family, because it can be hard to know that that’s happening sometimes. There are some kind of networks out there that will occasionally if they have reason to think there’s something going on you can post to. And a lot of agencies are part of those networks, or at least one of them. And so that helps a little bit. But it does usually, it is going to help with those, you know, people out there who are claiming they’re pregnant, who are buying, you know, fake sonogram photos and stuff on the internet, and aren’t actually even pregnant. They’re going to, they’re going to be able to catch that because they’re going to be getting her to a doctor, they’re going to be laying eyes on her.

Holly: So in Texas, you can’t actually voluntarily terminate your rights until 48 hours after you’ve given birth. So if somebody enters into an agreement with an agency, and they’re paying expenses for this birth mother, are there any protections for them if the birth mother sees that baby and says, nevermind?

Jenny: No, that is the risk of adoption. That, you know, if, if it’s truly a scam, I suppose you could try to take action, I think it would be very difficult. And I think it would be getting blood out of a stone, because she’s not going to have any money for you to get. But if it’s just legitimately as case of changing her mind, that’s her right. And so, you know, with adoptions through an agency, she can’t sign like you said she can’t sign a relinquishment for 48 hours after birth, in any type of adoption. If it’s signed to an agency, it would be irrevocable upon signing, whereas if it’s in a private adoption, it has a 10 day revocation period. So it’s a little riskier on that side, in that if she changes her mind in those 10, after she signed, but in that first 10 days, if it’s a revocable situation, she can revoke it. And unfortunately, I have seen that happen a couple of times. And those are heart wrenching.

Holly: Yes, yes. heartbreaking, I’m sure. Is there any exception to the financial assistance laws if the people are related to each other? So if the birth mother and the adoptive parents have a genetic relationship?

Jenny: So no, except that what I would tell my clients in that scenario, I mean, that the only exception in any of them, and this is true, even not related is in private adoptions they can pay for legal, medical and counseling associated with the adoption. So you know, if they have, let’s say, they have insurance, but they have co pays, you can pay that you can buy and prenatal vitamins, that maybe they you know, Medicare or Medicaid wouldn’t cover. That kind of thing. You can pay for them to have an attorney to review the relinquishment paperwork, which I do do in private cases. But if they’re relatives, what I tell my clients is, if it’s Christmas time, and you normally give them a Christmas present, you can give them a Christmas present just like you normally would.

That has nothing to do with the adoption. But you can’t do anything that isn’t something you would normally do if they weren’t pregnant. So like if it’s not a relative, you would normally give Christmas present to, no, you can’t give them a Christmas present all of a sudden, or a birthday present or something like that. But if it’s, you know, if it’s a sibling and you normally would give them a Christmas present or a birthday present, you can give them a Christmas present or birthday present. But don’t do something that’s beyond what you would have normally done. Just because all of a sudden, you know, she’s pregnant and placing this child with you. No.

Holly: So could you, for example, say, you know, come live in our house during this time.

Jenny: I generally tell them, don’t do that. Now if it’s a situation where maybe the relative is moved in with them, because they’re pregnant, and they’ve been staying there, and then they decide to place, so they were already living there, that might be different. I’d probably explore the facts pretty closely on that. Because they were already letting her live there long before she decided to place, then it has nothing to do with the decision to place. But if it’s, hey, you know, how about if you adopt my child, and I’ll just come live with you. That would make me nervous. I would not recommend that.

Holly: Do you often work with prospective adoptive parents right at the beginning, before they’ve ever connected with an agency or found a birth mother or anything like that?

Jenny: Not often. I do, do I kind of call it my A to Z consult, where I will have a consult with them and kind of talk to them about what all the options are, and what the laws are under Texas law, because of course, every state is going to have different laws on adoption, that is a state level situation. So if they’re looking in other states, which is always an option, laws might be different there. But I can tell them, you know, in Texas, it’s 48 hours til the birth mother consign. You know, an alleged father might be different. And we might be talking about that a little bit. But I do kind of explain the basics of Texas law, the basic way that that the Texas process works. And I do talk about the differences between independent and agency and all of that kind of thing.

Holly: So I know, there are open adoptions and closed adoptions and a lot of gray area between that. Can you kind of talk to that a little bit?

Jenny: Yes. So technically, in Texas, there’s no such thing as open adoption from a legal standpoint. What is typically meant by open adoption is as a practical standpoint, is that there is some sort of contact after the fact. Whether it’s just pictures and letters, or actual visits. But those are not enforceable in Texas. There are states like I think New York and Washington State and some places where they do have post adoption contact agreements that are enforceable. But in Texas, they are not a relinquishment, absolutely cannot be conditioned on any kind of future contact or anything like that. So while as a practical matter, that might happen, there might be contact afterwards. So it might be open in the general sense, in a legal sense, there’s no such thing in Texas. It would, you know, in a legal sense, it is totally up to the adoptive parents what access if any, there is, and birth parents need to know that.

Holly: So if a, let’s say, a foster parent has intervened, and they’re a party now to a CPS termination proceeding. If they enter into a mediated settlement agreement, saying they’re going to agree to this post terminated contact, and the parent signs affidavit of relinquishment and all that. Is it binding, does it does it undo the whole agreement?

Jenny: That is binding but only up until the adoption is final. So it is, that’s the one exception is in CPS cases, because the code is very specific to CPS cases, there can be a post termination contact provisions in the order. But it does also specifically say that those are not part of the adoption order. So it’s only good from termination to adoption. Now, I always tell adoptive parents in any scenario, don’t ever agree verbally, in writing or otherwise, to any kind of contact, you aren’t willing to continue. Absent something changing.

I mean, yes, obviously, if a birth parent, you know, ends up on drugs and goes off the rails or whatever, you got to be able to cut it off, but absent things staying the same, don’t commit to something in any way that you, even if it’s just, that’s what we want to do. That’s what we hope to do. Don’t give them any reason to think you’re going to do something if you have no intention of doing it. I have had adoptive parents who have been like, no contact, nope, not gonna do it. And I’m like, then don’t indicate it ever, that you might be open to it.

Holly: So what are the special considerations lawyers should be aware of if adoption involves an interstate placement.

Jenny: So, interstate there is a law called the interstate compact for placement of children or ICPC for short, which applies all 50 states have that, have adopted it. And essentially what it says is before a child can cross state lines for the purpose of adoption, you have to have approval from both states. The exceptions are for certain closely related relatives. So if it’s step parent, aunt, uncle, grandparent, adult sibling, that’s it. So if it’s a great aunt or great uncle, nope, too far away. Second cousin, too far away. And they’ve got to got to comply with both states.

So what that typically means is before the child leaves, let’s say, child born in Texas and going to let’s say, Oklahoma even, just right there across the river, you still have to have approval from Texas and Oklahoma ICPC. So what happens is, is you got to put together a packet of documents, there’s a long list that goes to Texas ICPC’s administrator, once they approve it, they send it to Oklahoma’s ICPC administrator. Once Oklahoma ICPC administrator approves it, then they can take the child home to Oklahoma. Not before.

Holly: Can that process happen before the child is born?

Jenny: No, because part of what you have to include in that process is going to be the birth mother’s relinquishment, and at least a discharge summary for the baby from the hospital. So even if the baby’s, if the baby’s premie and going to be in the hospital for weeks, a lot of times you can’t submit it until after baby is released. Every so often, depending on the states involved, you might be able to get a preliminary approval based on medical everything. But that discharge summary, so that the court can say, or not the court I’m sorry, the ICPC administrators can say, yes, everything looks good once you get us the discharge summary. And it might make it go a little bit faster. But it depends on the states involved. Like Texas, I know will typically do that if the other state will do it. But if the other state doesn’t want to do it, Texas won’t do it.

Holly: So during that interim period does, does the adoptive parent usually just stay in the state where the baby was born and keep it there? Or is there something else happening in the interim?

Jenny: Yes, usually, assuming you’re talking about a newborn, then yes, usually the adoptive parents are going to be in the state with the baby. Whether it’s with family members in the state or in an air b&b or a hotel. Always fun to have to spend time in a hotel with a newborn.

Holly: Yes!

Jenny: The process usually, I always tell people be prepared for two weeks. It doesn’t usually take that long. But I tell them be prepared for two weeks. The only times I’ve had it take more than two weeks was either when the adoptive parents didn’t have all their paperwork together for their home study or something. And so we had a delay, or after 911. I had one family stuck in California for three weeks. Because at that point, all the packets were being done by overnight FedEx, and planes were grounded. So it took longer for the packet to get from. It was in Texas. It’s been submitted to Texas, but it took longer to get to California. And those offices were closed for a little bit. And so they were there for almost three weeks. But most of the time, once the packet is submitted till they’re able to go home is usually less than two weeks.

Holly: Is it common for adoptions through an agency to involve interstate placements?

Jenny: I don’t know how you want to define common. I mean, I I represent two adoption agencies. One of them almost exclusively does Texas only cases. The only time they will do something Interstate is if it’s if it’s a client from out of state who came to me with a birth mom who needs expenses. So and they’ll run it through there. And they’ll do it in those cases, because I’m their attorney, they will do that for me.

But the other agency I work with, I don’t know the percentage of cases, but they have a number, I mean, a lot of their cases do involve interstate. It’s going to be Texas birth mothers placing with interstate families. So I would say probably 75%, if I were just roughly guessing off what my current cases with them are like. But you know whether that’s their overall percentage or not, I couldn’t say. I don’t I don’t track that number. I’m sure they do. It just depends on the agency. Some agencies will do a lot of interstates some of them don’t.

Holly: Is that something, if you’re a prospective adoptive parent, you should be asking the agency about?

Jenny: Yes, in that if you’re looking for something interstate, obviously, yes. If you’re wanting something only in in Texas, and you’re working with a Texas agency, they should be working pretty much exclusively with Texas parents, so you shouldn’t have a problem. But if you are out of state working with a Texas agency, obviously you need one that’s going to do interstate. Or, for example, one of the agencies I work with is adoption choices in Texas, which has their adoption choices of Texas in like 11 states. And so they may end up being able to give a Texas family a match another state because maybe that state is looking for a specific type of family. And adoption choices of Texas happens to have a family that fits that scenario. So sometimes that’ll happen. But mostly, if you’re working with a Texas agency, that means you’re looking for a Texas birth mom.

Holly: So kind of backing up a little bit. Can you talk about the requirements under Texas law to complete an adoption?

Jenny: There are like I said kind of a little bit earlier, there are two parts. There’s the termination of parental rights that has to happen before an adoption can happen. And then you have the final adoption. So the first prerequisite to an adoption is that the parental rights of the birth parents, biological parents, are terminated. That can either be obviously if the birth parent is deceased, or if they’re living it can be voluntary or involuntary. So voluntary is going to be when they’ve signed an affidavit of relinquishment for an alleged father.

And for those who aren’t familiar with that term, that just means a man who his biological father believed to be the biological father but is not married to the birth mother, or has not executed an acknowledgement of paternity or had a court order saying that he’s the dad. So therefore, legally, because it’s a paternity is not established in any way or presumed in any way. He can sign an affidavit of waiver of interest prior to birth. And that’s irrevocable, whether it’s independent or agency, and then that and then the birth mother’s relinquishment are then used to terminate parental rights. If they aren’t signing, then you have to be able to terminate their rights involuntarily.

And there’s a list of grounds in the family code, ranging from abandonment, to drug exposure, to endangerment neglect, which is often more likely seen in CPS type cases. So there’s a long list of grounds for that. Also, for alleged dads, we do have a paternity registry, so that can also come into play in terminating his rights. But you’ve got to terminate parental rights, adoptive families do have to have a home study done with criminal clearances done on the adoptive parents. Home study regs do also require anybody over the age of 14 in the home, have criminal checks and child abuse registry checks runs.

So I have this come up in step parent adoptions a lot where the biological parent will be like, well, why are they running a criminal check on me. You’re over the age of 14 and in the home, they have to. If you’ve got an older child in the home, who’s you know, 14, 15, 16, they run them on them. If you’ve got a grandparent in the home, run them on them. It’s not like it’s going to change the fact that you’re the parent. The part that’s really going to be relevant for the final adoption itself is of course, the adopting parent’s clearances. But in order to clear a home study, they’ve got to run the checks on everybody.

Holly: That’s interesting. I didn’t realize that in a stepparent adoption, even the biological parents that’s not terminating, would have to do a background check.

Jenny: Yep. Because the regulations for home study require that everybody aged 14 and over in the home, have that check done.

Holly: Do those other ones need to be filed with the court or just the step parent who is adopting?

Jenny: Just the adopting parent. So if it’s just the step parent or a second parent, or with just the LGBT cases, we tend to call those second parent as opposed to a step parent because they went into it being intending to be parents from the beginning. So it’s not like they married somebody who has children, or, you know, regular adoption, where both parents are adopting, but it’s the adoptive parents home are the only criminal clearances I file with the court. So if there’s either bio parent or older child in the home or grandparent or some other adults in the home, I don’t I don’t file there’s. They’re going to be referenced in the home study. But I don’t file the checks except for the adopting parties.

Holly: So you mentioned the LGBT adoptions, second parent adoptions. Are there any special considerations when doing those types of adoptions?

Jenny: Well, yes, and no. I will say that there are counties that are not as friendly to LGBT. And if the couple is not married, that can be even more problematic. Obergefell does generally protect married couples, because the statute does say for adoptions that if the petitioner for the adoption, adoptive parent is married, their spouse has to join in. So if they’re married, they have to do it together. So there is that. The biggest thing I find with LGBTQ adoptions is that the it tends to be with lesbian couples, who one of them is the biological mom, they used a donor or heaven forbid, they did an at home insemination, which means that person’s not a donor.

And they always wonder, why does the non biological mother need to adopt? Because there is a presumption under the Family Code that a husband who is the father of a child of his wife, that code says husband, it doesn’t say spouse, so there’s no presumption. Then even if you do argue that that should be applied, gender neutral, and when that that presumption can be over done by DNA test. So my recommendation is still to those couples that you go ahead and do a second parent adoption, which looks just like a step parent adoption, but I have had my clients tell me they prefer the term second parents.

So that’s what I use. And so in those scenarios, they do still have to have a home study. It’s a pain. It’s annoying. But the plus is you now then have an adoption decree. And basically, nobody can attack that. And if you move to another state, which is, of course also a potential issue, there’s a Supreme Court decision out there that says adoption decree from one state has to be honored in the other state, even if that state wouldn’t have let them adopt for some reason. So I do still recommend it for them. So that’s the main thing I would think.

Holly: So I know you also deal with surrogacy. Can you talk about gestational surrogacy versus traditional surrogacy and what those mean?

Jenny: Absolutely. So gestational surrogacy means that the surrogate, the woman carrying the child, is not the biological mother, her or genetic mother. Her eggs were not used to create the embryo that this baby is coming from. It can be the intended mother, it can be a third party donor, it just cannot be the surrogate eggs. Traditional surrogacy is going to be where it’s the surrogate’s eggs, whether they did an egg retrieval and did IVF to create the embryo and then re implanted the embryo or they just did artificial insemination. If it’s by sex that’s not surrogacy, I don’t care what anybody says. That’s just not surrogacy. The problem with traditional surrogacy is Texas does not recognize traditional surrogacy.

So with traditional surrogacy, there’s a high risk, because it basically gets treated like an adoption, and you have to terminate her rights. And then the second parent, whether it’s intended mother, or if it’s the same sex male couple, or, you know, if one of them is the genetic father, that’s fine, he’ll be the father. But if that surrogate doesn’t want to terminate her rights, you can end up having to co parent with her down the road. So I don’t do a lot of traditional surrogacy work. A lot of attorneys I know that do surrogacy work won’t touch traditional at all.

But I am very particular about which ones I take, and make sure I kind of screen them about. If it’s somebody who’s just found somebody off the internet to be a traditional surrogate, I won’t touch that with a ten foot pole. But I’ve had a couple where it’s been a relative, like a sister or a cousin. And they’ve really talked through it. And I make sure that they do have a psychological assessment, even if their doctor doesn’t require it, to make sure everybody’s very clear. And in those scenarios, I have done a few of them, but I maybe do one a year if that much. I just don’t do ton of them because they are high risk.

Holly: So what about, can you talk a little bit about gestational agreements?

Jenny: Sure. So Texas’ law was one of the first gestational surrogacy laws actually in the country. And it provides for intended parents and a gestational surrogate, and if she’s married, her spouse can enter into a gestational agreement. They have to enter into it 14 days prior to any transfer happening. Does have a few other requirements, like the surrogate has to have previously had a child and have no reason to believe she can’t do so again. The intended mother, assuming there is an intended mother, has to be unable to conceive or to safely carry a child to term, essentially, the language in the code is a little longer than that.

But that’s the gist. At least somebody has to have lived in Texas for at least 90 days before you try to do what’s called validating the agreement, which is how we get the pre birth order, which is how the hospital knows the intended parents are the parents of the child from the beginning. There’s a lot of other things that obviously go into a gestation agreement. There can be compensation, you definitely have to cover who’s going to cover expenses, medical expenses, things like that. We do still have provisions about termination and selective reduction even after Senate Bill eight.

Things about health insurance, life insurance, things governing her behavior, like you know, don’t drink, don’t smoke. You know, that kind of thing. Travel limitations. Because there are states that are not surrogacy friendly, you don’t want to going there. Generally, you’re not going to want a surrogate traveling late in the pregnancy. It’s riskier. Things of that nature. So there’s a lot that goes into it. I’ve seen gestational agreements that are 30 pages, I’ve seen gestational agreements that are over 100. So they they range. Mine typically range 45 to 50. Mine are kind of right in the middle of that in that sweet spot, but it covers a lot of different things. Like I said it does have to be signed 14 days before any transfer can take place.

And then assuming they meet all those other requirements, at some point, we will take that gestational agreement to court and get it validated. That’s the statute calls it. And we get a pre birth order, which a lot of other states will just talk about the pre birth order process. That pre birth order will say intended parents are the parents of the child and the hospital has to treat them, like the parents of the child. And they should be put on the original birth certificate, that kind of thing. And that’s what hospitals want to see in Texas, so that they’ll know from minute one, that baby is born, intended parents are making decisions for that baby, they go on the original birth certificate. All of that.

Holly: So you mentioned some medical requirements both for the surrogate and the intended mother. Does a doctor have to sign off on that and say, you know, the intended mother is not capable of having children? Or does the doctor have to sign off that the surrogate is capable of having children?

Jenny: What the statute says is that you have to have medical evidence that the intended mother is unable to conceive or carry a child term without unreasonable risk to her health or the health of the child. So what I typically do is just have one of the intended mothers doctors and you know, it could be the IVF doctor, it could be her personal OB, it could be an I’ve had to be an oncologist because it was a cancer situation. And I have a doctor sign an affidavit, when I get ready to file that with a court when I get ready to validate. That’s how I handle that. But the, from the surrogate standpoint, I don’t, you don’t have to file medical evidence. But all IVF doctors are going to do medical screening on her and things.

And so that should ideally take care of that the one thing that sometimes doesn’t cover. And if you’re working with a surrogacy agency, they’re going to catch this. But if you’re doing it privately, has the surrogate had a child before? Because the doctor’s office may or may not require that, but the law does. And so when I have my private ones, I do always confirm, okay, but your surrogate’s had a child before without problems right? Now, if they end up telling me, well, she had a child, but the child was, you know, born at 28 weeks, I’m gonna be like, your doctor probably won’t approve her.

Holly: The reason behind that law would be it just increases the chances that this surrogate is going to be able to have a successful pregnancy.

Jenny: Correct.

Holly: Interesting. Okay, so one final category I wanted to kind of go into and that would be for egg and sperm donors. So what qualifies someone as a donor under Texas law?

Jenny: Under Texas law, in order to be considered a donor, you have to work through a doctor or a clinic or, you know, so for egg donors, that’s not gonna be a problem, because you have to go through doctor in order to get the eggs. So egg donors, they’re always going to be donors. Sperm donors is a little trickier because they do sell online, at home insemination kits. I actually know somebody who literally used a turkey baster. You don’t have to go to a doctor. But if you don’t go to the doctor’s office, and do the insemination through, you know, the the providing a sample and the insemination through the doctor’s office, you are not a donor. In that case, you are a biological father and your rights have to be terminated. And there’s risks obviously, either way on that scenario.

Holly: Okay, um.

Jenny: Yes. Do you have to go through doctor’s office. Now, if you’re, you know, if I’ve got somebody who tells me, you know, we got sperm from a sperm bank, that’s fine. They obviously went into a medical facility to provide the donation. But those at home inseminations. No, no, no, no, no, no.

Holly: Do you see that a lot?Are a lot of people trying to do that?

Jenny: I see it periodically. And a lot of times, it goes just fine. I mean, you know, I don’t want to say that, you know, oh, my gosh, it’s always gonna go wrong. That’s not true. But the problem is, is it’s a risk, because I did have a call from somebody one time that they had used a friend’s, they had done an at home insemination kit that they bought on the internet, they got pregnant, they had the baby, they called me do a second parent adoption. He had decided he wanted to be dad. So he wasn’t going to cooperate. And he was providing diapers and providing formula and I had no way to terminate his rights, which then meant that the spouse couldn’t adopt.

The second mom couldn’t adopt. And so I told him, I said, unless he’s willing to agree or he disappears for two years and gives you nothing. I can’t help you. Even if they have a sperm donor agreement, that’s not going to help you in terms, you can’t terminate his rights based on that. Oh, you can you can, you know, if you end up in a fight and custody, you’re probably going to have good grounds that you’re going to get primary custody, he’s going to get ordered to pay child support. But even then, that’s not binding. Court is always going to be ruled by best interests of the child and the rest of it doesn’t really matter. If you don’t go through a doctor’s office, it’s a risk.

Holly: So one last type of donation I know you deal with would be embryo donation. Can you talk a little bit about that?

Jenny: Yes, so the first thing I want to say is, embryos are donated, not adopted. It is very common to hear out in common parlance, embryo adoption. There’s a very big difference between a donation which is basically a contract, and an adoption, which is a court proceeding. That is very complicated, as we’ve kind of already covered. So embryos are donated. Under Texas law, it’s referenced as a donation of embryos, eggs or sperm. So embryos are donated. I am seeing more and more of that, I probably did almost none of none of that until maybe four or five years ago.

And even then, I’m only to one or two the last couple years, I’ve been doing a lot more of them. Because I think what has happened is is as assisted reproduction rates are improving, more and more people are having embryos leftover, and they don’t want to just destroy them. So then they end up donating them so that other couples can have a child or individuals, doesn’t have to be a couple, have a child. And so you do an embryo donation agreements, just like you would do an egg donor agreement directly between the parties. I do recommend, in any scenario, even if you’re working with an egg donor program, an embryo donor program, and they tell you, you don’t need a direct agreement between intended parents or recipient parents and donor, I always recommend it.

Because otherwise, if you’re say, the recipient parent and your donor does something wrong, you don’t have any way to go against them. Because you don’t have a contract with them, you only have a contract with the donor program. So I do always recommend direct donations. Sperm donations can sometimes be a little different, because a lot of times that you’re going through a bank, but if you’re doing a direct one, where you know, this, this donor is donating directly to you, even if it’s anonymous, but it is specifically to you and not they’ve donated to the bank and you’re buying it from the bank. I do still recommend it. Even in sperm donations.

Holly: Do agencies typically cooperate in connecting the two sides? If somebody wants that kind of an agreement?

Jenny: Yes, and most I would say most programs do require that they go have get a direct contract. But and I think even more now, early on, I think it was a little more. Maybe five or six years ago, you saw more programs who were like, oh, you don’t need that. I think more and more of them have kind of come on board with no, they really do. From a legal standpoint. I think it’s better for the program. Because from the program’s standpoint, if the donor does something wrong, who’s going to, the program’s gonna get sued. So, you know, it’s a, it’s better for the program for them to have it as well.

Holly: I mean, they’re probably still gonna get sued, but at least then they have somebody else to point the finger at.

Jenny: Depends on what it is. Yeah. You know.

Holly: So we’re just about out of time. But one question I like to ask everyone who comes on the podcast, is, if you could give one piece of advice to young family lawyers, what would it be?

Jenny: Hmm. that’s a good question. Jokingly, I usually say don’t do it. But I would say, you know, when it talks, when you’re talking about family law, if you mean family law in general, I tell people, be prepared for the emotions. And that applies in family formation, it also applies to divorce, custody. I did that for 14 years. It’s you know, and you know, as well, there’s a lot of emotions, and you got to be prepared for that. And you’ve got to learn as a lawyer to step back, and not over invest in that. And that can be very hard. It sometimes gets really hard in family formation law.

Especially when you’re representing intended parents, and they’re desperate to have a child. And sometimes you have to tell them, don’t be so desperate. You don’t say it that way. But that’s the gist is, you know, let’s make sure you’re protected. Don’t don’t give everything because here’s why. But you need to be able to not get as invested. I’ve got a couple of contested adoption cases right now. And it gets very hard not to get invested in those. You’re looking at that child and thinking, oh, dear. And so it’s one of those things, you got to be careful about that. Because it can it can swamp you if you aren’t careful.

Holly: You don’t usually think about that when you’re doing adoption law. We we usually think of adoption law as the happy part of family law that everybody wishes they could do all the time.

Jenny: And anytime somebody says oh, you do happy law, I say no, no. For every adoption there are three sides, and there’s happy and there’s grief and there’s loss. So, it is it is not all happy. It isn’t. If you’re ever if you ever represent a birth mother during her signing, you know it’s not happy. 95% of them will be crying.

Holly: Oh, yeah, I’m sure. Hard decisions for sure.

Jenny: Because they don’t want to cry in front of people. So it is there is a lot of grief. The surrogacy assisted reproduction, little less so. But I mean, there’s still there’s still a lot of emotions and most intended parents going into assisted reproduction have gone through a lot of infertility. And it’s just it is a roller coaster until an adoption, surrogacy, I just felt like it’s a roller coaster. Just be prepared to ride it. And it’s a roller coaster, even for lawyers, just not. If you can keep yourself a step removed from it. You maybe don’t have quite as big as up and down.

Holly: For sure. Definitely. So where can our listeners go if they want to learn more about you?

Jenny: You want to learn more about me. The best place to find me is through my website, which is So that’s W O M A C K adoptions A D O P T I O N If you’re looking for attorneys in other states, because that does happen a lot. You can also go to the Academy’s website, which is that’s the Academy of Adoption and Assisted Reproduction attorneys. And that’s adoptionart A R

Holly: Great, well thank you so much for joining us today. Really enjoyed it. For our listeners, if you enjoyed this podcast, please take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at

Subscribe to the Podcast

Follow Us


This field is for validation purposes and should be left unchanged.