Surrogacy
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Surrogacy
Whether you desire to assist another couple or individual to help create their family or if you are considering using a surrogate to help you complete your family, we are here to assist you! Florida Law recognizes a person’s right to parent through surrogacy, preplanned adoption and donor arrangements. There are specific legal requirements that authorize a surrogate to carry a baby on behalf of the child’s intended parents, also known as the “commissioning parents”. A surrogacy agreement that outlines the legal rights and responsibilities of the surrogate and intended parents must be entered into prior to commencing a pregnancy.
Florida Requirements
In Florida, gestational surrogacy is governed by Florida Statute §742.15. This statute can be utilized by heterosexual and same sex married couples. Gestational surrogacy, in which the surrogate is not related to the child she is carrying, is the most common type of surrogacy today. In gestational surrogacy, a commissioning couple’s eggs or sperm, or both, are mixed in vitro and the resulting embryo is transferred within another woman’s uterus. Florida’s surrogacy statute has specific requirements stating that the commissioning couple is required to enter into a detailed contract with the surrogate and her spouse/partner prior to any fertility treatments occurring. The surrogate and the commissioning couple must be at least 18 years old and the commissioning couple needs to be legally married.
Because of the legal protections under the Florida statute, intended parents can be sure that the surrogate has no legal connection to the child through their Gestational Surrogate Agreement. Florida’s gestational surrogacy differs from traditional surrogacy as the statute requires the genetic material of at least one of the commissioning parents, but none from the surrogate. This statutory protection effectively protects the intended parents’ parental rights. Such protection is absent in many other states in the country, hence, Florida is a popular state for gestational surrogacy arrangements. Some states expressly prohibit surrogacy agreements as against the state’s public policy.
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Both the intended parents and the surrogate should have legal representation to protect the parties in a gestational surrogacy arrangement. We can provide legal services and draft Gestational Surrogacy Agreements for both intended parents and surrogates (and her spouse/partner, if applicable), although not in the same surrogacy journey.
Unmarried and single individuals can also utilize the services of a surrogate through a Pre-Planned Adoption Agreement. Pre-Planned Adoption Agreements are governed by Florida Statue §63.213 and are defined as an agreement in which a surrogate agrees to bear a child and relinquish parental rights to the intended parents. While this pre-planned adoption agreement is under Florida’s adoption statute, it has the same effect and outcome as married couples who use Florida’s surrogacy statute to allow single and unmarried couples to legally use a gestational surrogate in Florida with equal legal protections.
Intended parents who use the services of a surrogate must obtain a court order determining legal parentage for the child which is obtained after the child is born. The post birth order directs the appropriate state department of vital records to place the intended parents’ names on the birth certificate of the child(ren) delivered by the surrogate. A pre-birth order can also be obtained before the child is born to direct the hospital to provide all legal rights of the child to the intended parents.
For unmarried couples, following the birth of the child with a surrogate, the process in which the non-biological partner obtains full parental rights to the child is through the process of Second Parent Adoption. When the child is born, only the biological parent in a same sex, unmarried couple may have parental rights to the child based on the Pre-Planned Adoption Agreement. Without utilizing a Second Parent Adoption, the non-biological parent in the same sex relationship may not have legal rights to the child.
While it is not legally required for the surrogate to have her own attorney, it is in all parties’ best interest to have each individual represented. Industry standard dictates that the intended parents pay for the surrogate’s lawyer of her choosing. Individual representation for the surrogate and intended parents will ensure that all parties have equal protections and help avoid futures disputes.
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Because of the legal protections under the Florida statute, intended parents can be sure that the surrogate has no legal connection to the child through their Gestational Surrogate Agreement. Florida’s gestational surrogacy differs from traditional surrogacy as the statute requires the genetic material of at least one of the commissioning parents, but none from the surrogate. This statutory protection effectively protects the intended parents’ parental rights. Such protection is absent in many other states in the country, hence, Florida is a popular state for gestational surrogacy arrangements. Some states expressly prohibit surrogacy agreements as against the state’s public policy.
