Surrogacy

Gestational Surrogacy in Florida

Gestational Surrogacy Agreement and Pre-Planned Adoption Agreements

• Both a Gestational Surrogacy Agreement (only for use by heterosexual and same-sex legally married couples in Florida) and a Pre-Planned Adoption Agreement (commonly used by heterosexual and LGBTQ individuals and unmarried couples in Florida) are between the commissioning couple or single intended parent and the surrogate and her partner/spouse, if applicable. These agreements are intended to detail the parties’ rights, obligations, intentions and expectations in connection with their third-party reproductive technology arrangement, and cover topics such as parental rights, custody issues, compensation, location of delivery, future communication between the parties, insurance, control over medical decisions during the pregnancy, payment of medical bills, liability for medical complications, and other provisions required by Florida law.

Gestational Surrogacy Agreements Under Florida Law

• In Florida, gestational surrogacy is governed by Florida Statute 742.15 and can only be utilized by heterosexual and same-sex married couples. This statute also requires that the embryo being transferred to the surrogate is genetically related to at least one member of the commissioning couple. Gestational surrogacy refers to a process by which a commissioning couple’s eggs and/or sperm are fertilized in–vitro and the resulting embryo is then transferred into another woman’s uterus. Because of the legal protections under the Florida statute, intended parents can be certain that the surrogate has no legal connection to the child (child or children) through their Gestational Surrogate Agreement. Under Florida law, the “commissioning couple” is “the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.” Therefore, 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.

Pre Planned Adoption Agreements Under Florida Law

• 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 parent(s). Pre-Planned Adoption Agreements allow heterosexual and LGBTQ individuals and unmarried couples to legally use a surrogate. Florida law has mandatory requirements of what must be included in this type of agreement to effectively terminate the surrogate’s parental rights and avoid Florida’s adoption laws.
• Pre-Planned Adoption Agreements do not require the surrogate to be biologically related to the child, and it can be used in either a “traditional surrogacy” (where the surrogate becomes pregnant with the use of her own egg) or a “gestational surrogacy” (where the surrogate becomes pregnant without the use of her own egg).
• Pre-Planned Adoption Agreements are enforceable in Florida, provided the agreement complies with the precise requirements of Florida law, the necessary consents are obtained, and no party terminated the agreement before the final transfer of custody. Florida law specifically requires a separate attorney for both the intended parents and the surrogate, both at the expense of the intended parents. Our attorneys can provide legal services for both intended parents and the surrogate (although not in the same surrogacy journey).