FAQ Same Sex Surrogacy In Florida

  1. How does the recognition of same sex marriage in Florida impact same sex spouses’ use of a surrogate?

When using a Florida surrogate, prior to marriage equality, there were additional steps required for same sex spouses (commissioning couple) to ensure parental rights for the parents which involved Florida’s adoption laws. Now, same sex spouses can utilize Florida’s expedited and simplified process of affirming both parents as the legal parent of the child born via a surrogate under Florida gestational surrogacy statute. The gestational surrogacy statute eliminates the couple’s need to obtain a consent to adoption from the surrogate. Once the child via a surrogate is born, Florida’s surrogacy friendly procedures permit the commissioning couple, within 3 days after the birth of the child, to petition the court for a birth certificate with their names as the biological parents. This procedure eliminates the quandary in many states where in order to have the same sex parents’ names placed on the birth certificate, they are forced to adopt their own biological child.
  1. How do LGBTQ singles use a surrogate in Florida?

Since surrogacy agreements under Florida’s surrogate statute (which allow for automatic parental rights for both parties in the commissioning couple) are currently limited to legally married couples, LGBTQ singles (intended parent) looking to use a surrogate cannot use Florida's surrogacy statute but must proceed under Florida’s adoption laws. After selecting a surrogate, the single intended parent enters into a Pre-Planned Adoption Agreement with the surrogate. This is an agreement by which a surrogate agrees to bear a child and relinquish parental rights to the intended parent. Florida law has mandatory requirements of what is included in this agreement in order to effectively terminate the surrogate’s rights. Following the birth, the intended parent files an adoption petition which terminates the parental rights of the surrogate and names the single parent as the legal parent.
  1. How do same sex, unmarried couples use a surrogate in Florida?

Since surrogacy agreements under Florida's surrogate statute are currently limited to legally married couples, same sex, unmarried couples looking to use a surrogate cannot use Florida’s surrogacy statute but must proceed under a Pre-Planned Adoption Agreement (referenced above). Following the birth of the child via a surrogate, the process in which the non-biological partner obtains full parental rights to the child is through a Second Parent Adoption. When the child is born, only the biological parent will have parental rights to the child. Without utilizing a Second Parent Adoption, the non-biological parent has no legal rights to the child. 
  1. Can a stepparent in a same sex marriage file a stepparent adoption of the spouse’s child and avoid filing a second parent adoption and home study?

Yes. In Florida, a stepparent adoption, previously limited to heterosexual, married couples, is a court proceeding allowing a stepparent to adopt his/her spouse’s child. The benefit of a stepparent adoption is that it avoids the extra expense of a home study, background check, fingerprints, and multiple hearings to finalize an adoption; these items are required with a Second Parent Adoption. A stepparent in a same sex, married couple, can adopt his/her spouse’s child through a more streamlined, inexpensive, and simplified stepparent adoption to become the legal parent of the child and place both parents’ on the child's birth certificate. Without being recognized as the legal parent of a spouse’s child, the non-legal stepparent ultimately has no parental rights.
  1. Can same sex spouses adopt a child jointly?

Yes. Because Florida recognizes same sex marriage, as long as a same sex couple is legally married, they can jointly adopt a child and have both parents’ placed on the child's birth certificate at the same time instead of having to file a separate adoption proceeding for one of the spouses and then file another separate second parent adoption (i.e. Second Parent Adoption).    

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