Gestational Surrogacy Agreements and Pre-Planned Adoption Agreements in Florida
Both a Gestational Surrogacy Agreement (only for use by legally married heterosexual and same sex couples in Florida) and Pre Planned Adoption Agreement (commonly used by singles and unmarried couples in Florida) are between the intended parent(s) and the surrogate and her partner/spouse, if any. These agreements are intended to detail the parties’ rights, obligations, intentions and expectations in connection with their third party reproductive technology arrangement, and cover subjects 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.
"Marla was pivotal in helping us have a family. She is kind, compassionate and very knowledgeable. She helped us navigate the surrogacy process from start to finish and was always available for any questions. Our journey was independent and she made the process run smoothly throughout the whole journey. I highly recommend Marla to help anyone navigate the surrogacy process and help build their family."
Gestational Surrogacy Agreements Under Florida Law
In Florida, gestational surrogacy is governed by Florida Statute 742.15. Gestational surrogacy refers to a state that results from a process in which a commissioning couple’s eggs or sperm, or both, are mixed in vitro and the resulting embryo is transferred within another woman’s uterus. This statute can be utilized by heterosexual and same sex married couples.
Because of the legal protections under the Florida statute, intended parents can be sure that the surrogate has no legal connection to the child through their Gestational Surrogate Agreement. 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. This statutory protection effectively protecting the intended parents’ parental rights is absent in many other states in the country, hence Florida is a popular state for gestational surrogacy arrangements. Some states expressly prohibit surrogacy agreements as against the state’s public policy.
Both the intended parents and the surrogate should have legal representation to protect the parties in a gestational surrogacy arrangement. Marla can provide legal services for both intended parents in drafting a gestational surrogacy agreement and the surrogate (and her spouse/partner, if applicable) in reviewing a Gestational Surrogacy Agreement (although not in the same surrogacy journey).
Pre Planned Adoption Under Florida Law
How do single people and unmarried couples use a surrogate in Florida?
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 parents. This is utilized by single and unmarried couples in Florida since Florida’s surrogacy statute is only for married couples (both heterosexual and same sex couples).
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 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 intended parents, 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.
The court proceedings following a pre-planned adoption agreement are the same as a gestational surrogacy contract for married couples. While not legally required, my recommendation is that a pre birth order be obtained to provide to the hospital in advance of the birth (does not change the birth certificate in Florida). In order to change the birth certificate, following the birth of the child, a petition is filed to terminate any parental rights of the surrogate (and her spouse, if applicable), and to name the intended parents as the sole legal parents of the child– the same procedures followed for married couples under Florida’s surrogacy statute. Just like the surrogacy statute, all court proceedings are confidential and the intended parent’s attorney can handle the court proceedings without the intended parents or surrogate attending.
For more information on the pre-planned adoption statute for unmarried couples, see the videos below.
Pre and Post Birth Orders
Intended parents who use the services of a surrogate must obtain a court order determining legal parentage for the child which is obtained after the child is born. The post birth order directs the appropriate state department of vital records to place the intended parents’ names on the birth certificate of the child(ren) delivered by the surrogate. A pre birth order can also be obtained before the child is born to direct the hospital to provide all legal rights of the child to the intended parents.
Surrogacy and Egg, Sperm, and Embryo Donor Contract Review
During every match between an intended parent and a surrogate or egg, sperm, or embryo donor, it is critical, and sometimes legally required, to have one assisted reproduction attorney represent the intended parents and a separate attorney who specializes in assisted reproduction represent the surrogate or donor and their spouse/partners. Separate legal representation is important to ensure that each of the parties are properly represented and have the chance to discuss any questions or concerns regarding the contract with their own attorney. Separate lawyers also avoids any conflicts that may arise between intended parents and surrogates or donors discussing sensitive contract details directly. The intended parents are expected to pay for the attorney for the surrogate or donor and their spouse/partner (if any).
Marla proudly represents Florida surrogates, egg donors, sperm donors, and embryo donors during the contract review stage of a third party reproduction process.
"Marla is so wonderful to work with. As a surrogate she looked out for my interests, thoroughly explained my lengthy contract to me and made the whole process so quick and easy. She was also genuinely excited for me when I was matched with the perfect couple! If you need surrogacy services please call her. You will not be disappointed!!"