Overview of Florida’s Surrogacy Statute
(for married couples only)
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.
Overview of Florida’s Pre-Planned Adoption Statute
(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.
Overview of Florida’s Court Proceedings for Surrogacy
In Florida, a pre-birth order is not legally required, however, it is the best practice to obtain a pre-birth order in order to provide to the hospital in advance of the delivery to ensure for a smooth delivery process. The post birth court order is what allows a new birth certificate to be issued removing any reference to the gestational surrogate and naming the commissioning parent(s) as the sole legal parent(s) of the child(ren). All hearings are held in closed court and are confidential and the commissioning parent(s) and gestational surrogate and her spouse/partner (if any) are not required to attend the hearings relating to parental rights referenced above.
Call to speak to an experienced Florida surrogacy lawyer to guide you through the surrogacy and pre-planned adoption process.