Overview of Florida Surrogacy Laws

Each state has different laws regarding surrogacy. Some have very surrogacy friendly laws, like Florida's surrogacy friendly laws, and some states either have no laws at all or have restrictive laws that make surrogacy legally risky for the parties. Florida surrogacy attorney, Marla Neufeld, can assist with any Florida surrogacy matter by either representing the intended parents or in representing a gestational surrogate. The intended parents can be located anywhere in the world, and in order to utilize Florida surrogacy laws, the surrogate should be located in Florida to deliver in Florida. Two lawyers are needed for each match, one lawyer to represent a surrogate and one lawyer to represent the intended parents where the intended parents pay for each attorney. Separate lawyers is not a legal requirement in Florida, however it is a best practice and important to ensure that everyone understands the legal obligations and commitment involved in a surrogacy contract and journey. It is important before any person embarks upon a surrogacy journey to be familiar with the applicable surrogacy laws to make sure that legal rights will be protected. It is important for intended parents to research surrogacy laws to make sure that the intended parent/parents will be able to obtain parental rights to the child without any legal complication with a surrogate having an ability to revoke her consent or assert parental rights to the child. A surrogate should also research the applicable surrogacy laws to make sure she will not be vested with any parental rights to the child. Typically, the law of the state where the birth occurs is the applicable state law, however the applicable state law does need to be analyzed on a case by case basis as there may be grounds to utilize other state law based on the parties' facts and location.

Florida Surrogacy Laws:

The laws in Florida for surrogacy will depend on whether the intended parents are married and also whether the intended parents are using the genetics from at least one member of the intended parents. No matter what scenario: married intended parents, a single intended parent, heterosexual or same sex intended parents, donor egg, sperm, or donor embryo - anyone can legally work with a gestational surrogate in Florida with Florida's surrogacy friendly laws. For any Florida surrogacy matter, a medical necessity is required to proceed. Each state has different laws regarding surrogacy and some states do require some form of medical necessity before being cleared to proceed with a surrogacy journey. What constitutes this medical need and how such medical need is determined is not specifically defined. Based on U.S. case law, it appears that the determination of a medical need is within the discretion of the doctor. An example of a state's law requiring a medical necessity for the intended parent(s) is in Florida Statutes 742.15 which states in part,
(2) The commissioning couple shall enter into a contract with a gestational surrogate only when, within reasonable medical certainty (emphasis added) as determined by a physician licensed under chapter 458 or chapter 459: (a) The commissioning mother cannot physically gestate a pregnancy to term; (b) The gestation will cause a risk to the physical health of the commissioning mother; or (c) The gestation will cause a risk to the health of the fetus

Provided the medical necessity requirement is met to proceed with surrogacy in Florida, below is a summary of a portion of the applicable Florida surrogacy laws.

(for married couples only using the genetics of at least one member of the intended parent's genetic material, i.e. no donor embryo)

Florida Statute 742.15 governing gestational surrogacy can only be utilized by heterosexual and same sex married couples where a doctor determines that surrogacy is medically necessary. It is required that the commissioning couple (must be married, 18 years old, and use the egg or sperm of at least one member of the commissioning couple) and the gestational surrogate (who must be 18 years old) and her spouse/partner (if any), enter into a contract setting out the terms of the surrogacy including, among other requirements, the gestational surrogate’s relinquishment of parental rights to the child(ren) prior to any medications begin for the gestational surrogate. The contract must provide, among other legal requirements, that the gestational surrogate is the sole source of consent with respect to the clinical intervention of the pregnancy and the commissioning couple must agree to assume parental rights to the child(ren) regardless of any impairment (absent the child(ren) being the genetic child of the gestational surrogate or in the event of a fertility clinic error where the wrong embryo was transferred). Once the child(ren) is born, Florida requires the commissioning couple, within 3 days after the birth, to petition the court for an order directing the Florida Department of Vital Statistics to issue a birth certificate naming the commissioning couple as the sole legal parents of the child(ren). Once the court order is issued, the Florida birth certificate is provided shortly thereafter to the commissioning couple.

(for unmarried and single people only, or when using donor embryo)

Pre Planned Adoption Agreements are governed by Florida Statute 63.213 and are defined as an agreement in which a surrogate agrees to bear a child and relinquish parental rights to the commissioning couple. This is utilized by single and unmarried couples in Florida, along with those using a donor embryo, since Florida’s surrogacy statute is only for married couples (both heterosexual and same sex couples) and require the genetics of at least one member of the commissioning couple. 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 (or anyone using a donor embryo), to legally use a gestational surrogate in Florida with equal legal protections. The pre planned adoption agreement is almost identical to that of a contract under the surrogacy statute, the main difference is that because it’s under the adoption statute, the surrogate signs an adoption consent at the time of signing the pre planned adoption agreement agreeing to relinquish any parental rights to the child which relinquishment cannot be revoked unless the child is genetically related to the surrogate at which time the surrogate would have 48 hours after the birth to revoke her consent. Assuming this is a gestational surrogacy, then the surrogate will not have the ability to revoke her consent because the genetics of the child will be related to one or both of the commissioning couple, or if a donor embryo is used, the child still would have no genetic connection to the child. The only ability to revoke the surrogate’s consent is if she had intercourse at a time she was restricted from doing so under the contract in which case she would not relinquish her parental rights and she would be deemed in breach of the contract. This concept is similar to the contracts under Florida’s surrogacy statute.