Why unmarried couples should consider consulting with a Florida reproductive lawyer prior to engaging in IVF (with or without a surrogate).
Pursuant to Florida law (Section 742.11), a child born within wedlock and conceived by IVF or insemination and/or donor egg/embryos is irrebuttably presumed to be the child of the husband and wife, provided the parties consenting to the Assisted Reproductive Technology (ART) procedure in writing.
Based on this law there are two reasons why I think that unmarried couples (same sex or not) should talk to a reproductive attorney prior to ART to consider entering into a separate pre-conception agreement prior to engaging in ART to evidence their intent to both be the legal parents of the child:
(1) if the child is not born “into wedlock”, there is the potential that the birth mother could dispute the other partners’ parental rights and refuse to sign off on the acknowledgment of paternity, which is signed at the hospital at birth, and/or,
(2) since reproductive law at this time still references ‘husband’ and ‘wife’, I think it is important for same sex couples to consider what extra protections they can put into place to demonstrate the intent to both be the legal parents of the child.
In addition to a pre-conception agreement, for any same sex couple (married or not), since the statute relates to “husband and wife”, the parties should understand their options relating to a post-birth step/second parent adoption to further protect both of the parents’ rights even if the birth certificate lists both parties as the legal parents. A post-birth proceeding is even more important when the spouse/partner that did not deliver the child does not have a biological connection to the child (i.e. lesbian couple where the birth mother only has a biological connection with use of a sperm donor).
Marla Neufeld offers free initial consultations to discuss your options with agreements to protect parental rights. Contact her at email@example.com or 954-761-2929