If you’re considering a surrogacy in Florida, you’ve come to the right place. Like surrogacy in many other states, Florida surrogacy is regulated by specific surrogacy laws, which makes it important that you fully understand the legal process involved before pursuing a surrogacy in Florida.
Florida surrogacy is a well-regulated process that’s possible for intended parents and surrogates alike. The surrogacy laws in Florida are designed to protect both parties’ rights during the process, leading to an efficient, safe surrogacy journey for all involved. Thanks to these laws, Florida is certainly a surrogacy-friendly state for those who are interested in this family-building process.
We suggest that all intended parents and surrogates interested in a surrogacy in Florida contact our agency as well as an experienced surrogacy attorney to learn more about what surrogacy in this state entails. To help you out, we’ve given you a basic explanation of Florida’s surrogacy laws in this article, courtesy of surrogacy attorney Christine E. Arendas.
Q: Is surrogacy legal in Florida?
A: Yes. Florida statutes allow intended parents the ability to expand their family using fertility techniques through traditional surrogacy and gestational surrogacy in Florida.
Traditional surrogacy (also known as a “pre-planned adoption”) is governed by Fla. Stat. §63.213 and is a situation wherein (1) the surrogate utilizes her own egg to create a pregnancy or (2) neither of the intended parents are genetically related to the child. If the surrogate has a genetic relationship with the child, she may rescind her consent to the adoption up to 48 hours after birth.
Gestational surrogacy is governed by Fla. Stat. Chapter §742. A gestational surrogacy arrangement requires a genetic relationship with at least one of the intended parents and no genetic relationship with the surrogate.
Q: Is compensated surrogacy legal in Florida?
In both a traditional surrogacy and a gestational surrogacy in Florida, the intended parents may pay reasonable legal, medical, psychological, psychiatric expenses and living expenses, wages lost due to the pregnancy and birth, as well as reasonable compensation for inconvenience, discomfort and medical risk.
Q: Is traditional surrogacy legal in Florida?
A: Yes. The “volunteer mother” (the surrogate) will execute consent to termination of her parental rights at the same time as the pre-planned adoption agreement. The agreement may be terminated by the surrogate, intended father or intended mother at any time. If the surrogate has a genetic relationship with the child, she may rescind her consent within 48 hours of giving birth. After the rescission period, the pre-planned adoption agreement is presented to the court for the court’s approval. If the pre-planned adoption agreement is terminated by any party, or the court does not approve the agreement, the surrogate must be prepared to assume parental rights and responsibilities for the child.
Q: What does a surrogacy agreement in Florida cover, and how does the legal process work?
A: Gestational surrogacy contracts are different from agreements for pre-planned adoption. Gestational surrogacy contracts and their contents are governed by Fla. Stat. §742.15. The contract must, at a minimum, include language that the surrogate: (a) is the sole source of consent with respect to clinical intervention and management of the pregnancy; (b) will submit to reasonable medical evaluation and treatment and follow medical instructions; (c) will relinquish all rights with respect to the child; (d) and will assume rights and responsibilities for the child born to her if neither intended parent is genetically related to the child. The contract must also include language that states that the commissioning couple agrees to accept custody of the child regardless of any impairment of the child.
The contract also provides the terms for compensation, reimbursement of lost wages and other incidental expenses incurred by the surrogate; payment of legal and medical expenses; limitations on the surrogate’s exposure to certain foods and elements; compliance by all parties with the terms of the contract; and penalties if there is a breach. Generally, it will be necessary to have an escrow agent hold the intended parents’ funds for payment of the items set forth in the surrogacy contract.
There must be a valid, signed surrogacy contract between the surrogate and the intended parents prior to engaging in gestational surrogacy in Florida. Once there is a fully signed contract, the intended parents’ attorney provides a clearance letter to the fertility clinic that will be performing the procedures, which authorizes the clinic to proceed. Upon confirmation of a pregnancy, the surrogate will transfer to her OBGYN for future prenatal care.
Although not required, it is suggested when the pregnancy reaches the second trimester, the intended parents file their petition for affirmation of parental status with the court and seek entry of a pre-birth order. The pre-birth order identifies the parties’ rights and responsibilities (such as who will receive the hospital ID bands, who has the right to make decisions regarding the health and welfare of the child, who the child is to be discharged to, and other important issues). The hospital must place the name of the surrogate on the child’s birth certificate. If the surrogate is married, no man other than her husband is permitted to be placed on the birth certificate.
The pre-birth order is provided to the hospital where the delivery will take place in lieu of the actual contract. If a pre-birth order is not obtained, then the intended parents and surrogate will need to coordinate with the hospital and provide the hospital the terms of the contract. The hospital may or may not comply with the parties’ contract terms.
After the child is born, the intended parents will obtain a final judgment affirming parental status. This judgment recognizes the intended parents as the child’s legal parents and allows the birth certificate to be amended so that the intended parents are listed as the child’s parents.
Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Florida?
A: Yes. While Florida surrogacy is an unsettled area of law, the contract provisions are enforceable pursuant to general contract. If, however, the contract contains a provision which is illegal or against public policy, the court can strike that provision form the contract rather than enforce it.
Q: What are the surrogacy laws in Florida on parentage orders?
A: Fla. Stat. §742.16 requires filing of the petition for affirmation of parental rights by the intended parents within three days after the child’s birth. Although not required, a pre-birth order may be obtained by filing the petition for affirmation of parental status after confirmation of the pregnancy (usually after the commencement of the second trimester) and seeking temporary relief under that petition.
The process of obtaining parentage orders is covered in the question above about surrogacy contracts.
Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Florida?
A: Florida statutes do not require the intended parents to establish residency in the state before they may participate in a gestational surrogacy arrangement. A child born in the United States is a U.S. citizen. Intended parents who reside outside of the state of Florida or outside of the United States should consult with an attorney located in their state/country to determine whether there are laws within their state/country which would prohibit them from participating in surrogacy arrangements (and possibly whether participation by the intended parents would be a criminal act subject to prosecution) and how the child’s application for citizenship within the intended parents’ home country could be affected by such an arrangement.
Q: When do intended parents need to complete an adoption after birth?
A: If the child is not genetically related to either intended parent, or the child is genetically related to the surrogate, the intended parents must file adoption proceedings pursuant to Fla. Stat. §63.213 to terminate the rights of the surrogate and establish their rights to the child.
Q: Does Florida allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?
A: Florida law does not specifically allow second-parent adoptions. However, Florida law allows adoptions by single persons. A second-parent adoption would be appropriate for persons looking to establish legal parental rights with the consent of the biological parent(s) whose rights will not be terminated. A second-parent adoption may be appropriate when a non-married couple used fertility techniques to have a child together, i.e. through the use of donor eggs or donor sperm. The person seeking to establish parental rights through adoption must still comply with the requirements of Florida Statutes Chapter 63 (such as having a home study performed and using an adoption entity to make the placement) to effectively accomplish an adoption. Only the Department for Children and Families, Florida-licensed attorneys or Florida licensed child-placing agencies may act as an adoption entity.
A stepparent adoption can be completed only if the person seeking to adopt is legally married to a legal parent of the child and with that parent’s consent. Rights of any other parent will need to be terminated before they may be recognized in the stepparent.
Q: What happens in cases where intended parents use a donor egg, sperm or embryo?
A: Donors relinquish his/her maternal or paternal rights and obligations with respect to the donation or the child resulting from the donation of eggs, sperm or embryos. Except in the case of gestational surrogacy, a child born within wedlock that was conceived by means of donated eggs or donated embryos shall be presumed to be the child of the recipient gestating women and her husband, provided both parties consented to use donated eggs or pre-embryos in writing.
Except in the case of gestational surrogacy, if the intended parents are legally married and agree in writing to use of donated eggs, sperm or embryos through artificial or in vitro insemination, the child is irrebuttably presumed to be the child of the husband and wife.
Q: Are there any additional laws impacting same-sex surrogacy in Florida?
As you can see, surrogacy in Florida is certainly a legal and practical possibility for those who are interested in the process. After all, the surrogacy laws in Florida have created a safe, well-defined process that can put at ease any concerns intended parents and prospective surrogate may have. As long as you work with an experienced surrogacy attorney and full-service surrogacy agency like American Surrogacy, your Florida surrogacy experience will be a positive, successful one that you’ll remember for the rest of your life.
For more information about surrogacy in Florida and how we can help you reach your surrogacy goals, please contact our surrogacy specialists at 1-800-875-2229(BABY) today.
State law information provided by:
Christine E. Arendas, Esquire, BCS
The information provided in this article is not intended as strict legal advice. While it was the opinion of the attorney at the time it was written, Florida surrogacy laws are always subject to change. American Surrogacy recommends you contact a local surrogacy attorney in Florida to learn more about the current legal regulations on this family-building process.