As a Florida surrogacy lawyer, I receive some of the same surrogacy questions over and over. I thought it would be helpful to share some of the most frequently asked questions about the Florida surrogacy process:
Can I use a surrogate to “save my figure”?
Elle magazine coined the phrase “social surrogacy” calling surrogacy the “fertility industries best kept secret.” It highlighted women seeking to use a surrogate to side step pregnancy for convenience or to enhance their career. Under Florida law, you cannot use a surrogate for non medical reasons. A doctor must determine that: (1) the mother cannot carry a pregnancy to term or, (2) the pregnancy will cause a risk to the health of the mother or the fetus. In addition to Florida law, the American Society for Reproductive Medicine issued guidelines in 2012 stating that surrogates should be used only “when a true medical condition precludes the intended parent from carrying a pregnancy or would pose a significant risk of death or harm to the woman or the fetus.”
While surrogacy will allow, should you choose, to eat sushi and travel during your third trimester of pregnancy, it must be deemed medically necessary as determined by a licensed medical doctor.
What should I look for when selecting a Florida surrogate?
A surrogate should understand that she will have to interrupt family and work schedules to attend recurring medical appointments, as well as undergo fertility drug protocols and embryo transfers. It is essential that the surrogate and commissioning couple agree about difficult issues inclusive to pregnancy: number of embryos to transfer, agreement to termination/selective reduction if medically necessary. You want to ensure she leads a healthy lifestyle and has a good support system. Preferably she has had a prior, uncomplicated birth, minimal number of Caesarian deliveries, is free of a criminal history and generally no older than 40 years of age. Never underestimate your instinct. Surrogates are generally reviewed by a medical doctor, psychologist, and surrogacy agency (if applicable) to help assist with these determinations.
Can same sex couples use surrogacy in Florida to start a family?
With current advances in reproductive technology, coupled with the evolving legal landscape in Florida, surrogacy for same sex couples is permissible; Florida does not prohibit egg or sperm donation for same sex couples. Single individuals or unmarried same sex couples will need to use Florida’s Pre-Planned Adoption statute to complete their surrogacy process.
Can a same sex partner donate egg or sperm to their partner, retain parental rights, and not be viewed as a donor?
In late 2013, the Florida Supreme Court held that part of the Florida egg, sperm and embryo donation law was unconstitutional as it only allowed legally married, heterosexual couples to retain parental rights to children born resultant from donated genetic material from one party to the other. The case involved a lesbian couple where one woman donated her egg (“biological mother”) to her partner (“birth mother”) to carry the child. Years after the birth of the child, the birth mother refused to give the biological mother parental rights and asserted the biological mother was only a donor of the egg with no parental rights. Under Florida’s egg donation statute, since they were not a legally married couple, when the biological mother donated her egg to the birth mother, she was viewed as a donor and did not retain parental rights. The Florida Supreme Court determined that the donor statute was unconstitutional because it denied the biological mother the right to raise her child. The Court held, “we conclude that the state would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent.” This is groundbreaking for same-sex couples in Florida wishing to utilize assisted reproductive technology; they are no longer deemed as donors of genetic material if their intent is to retain parental rights. Regardless of the law, a contract setting forth the parties intentions is strongly recommended when dealing with any reproductive technology issues.
How much do surrogates get paid?
A more in-depth discussion on some of the typical costs associated with surrogacy, how much do surrogates get paid, etc… click on the link.
Will insurance cover any of the surrogate’s medical expenses?
As required by a surrogacy contract, the commissioning couple are responsible for all medical costs of the surrogacy process including the fertility treatments, medications, obstetrician, hospital and any fertility procedural/pregnancy related complications. It is critical that the surrogate’s insurance policy (if any) is reviewed. Many policies specifically exclude coverage for surrogacy. If the surrogate’s insurance is not an option or does not provide adequate coverage, there are insurance companies that specifically issue coverage for surrogacy. Regardless of the policy used, the commissioning couple is responsible for all co-payments, deductibles and non-covered expenses. Some prefer to pay all expenses out of pocket and negotiate the medical bills in advance, but this can be risky if complications arise. Once the child(ren) is/are delivered, obstetrical benefit coverage of the commissioning couple, if applicable, will cover the expenses of the child.
Who helps while on the surrogacy journey?
They say it takes a village to raise a child. But with surrogacy it takes an army of supportive family, friends, and qualified professionals to bring the journey to fruition. Before you can begin, social workers, psychologists, physicians, and lawyers may evaluate the surrogate to make the right match with the commissioning couple. Psychological counseling is recommended for the surrogate (her partner/spouse) and the commissioning couple. Medical specialists are required to screen pre-existing conditions, etc., conduct the fertility treatments and monitor the health of the pregnancy and delivery. Reproductive technology lawyers are required to negotiate egg donation and surrogacy contracts and to prepare legal documents to confirm the parents’ parental rights and record the parents as such on the birth certificate.
Additionally, parents should consider consulting with a trust and estates lawyer to prepare wills and other trusts in anticipation of the expecting child(ren) and/or to handle the disposition of any frozen genetic material in the event of death, divorce or unforeseen circumstances of one or both parents. Surrogacy and egg donation agencies also play a critical role in matching the surrogate or egg donor with the commissioning couple and guiding everyone through the many steps involved with the process. So while it takes an army for a successful foray to parenthood, with a competent team, the process is an exciting option.