GESTATIONAL SURROGACY LAW FLORIDA

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Florida has clear cut laws for gestational surrogacy making it relatively easy to become an intended parent.  Surrogacy is permitted by statute, but gestational surrogacy contracts will not be enforceable unless the Intended Parents are married and all parties to the contract are 18 years of age or older, pursuant to Fla. Stat. Chapter §742  The laws for traditional surrogacy; however, are similar to adoption laws making it a much more difficult path to pursue.

Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Florida, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.

Below is a list of some of the most frequently asked questions about surrogacy in Florida.

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Is Gestational Surrogacy Legal in Florida?

YesSurrogacy is permitted by statute, but gestational surrogacy contracts will not be enforceable unless the Intended Parents are married and all parties to the contract are 18 years of age or older, pursuant to Fla. Stat. Chapter §742.

Is Traditional Surrogacy Legal in Florida?

Yes. Traditional surrogacy is permitted; however, it is a risky path to pursue.  Governed by Fla. Stat. §63.213, traditional surrogacy laws function more like adoption laws which means that the surrogate maintains legal parental rights of the child.  

Although intended parents and the surrogate consent to and sign what’s called a ‘preplanned adoption agreement’, the surrogate maintains parental rights of the child and can revoke her agreement to terminate her rights up until 48 hours after the child is born.  If the surrogate revokes her consent to give up her parental rights, she will assume the legal parental rights and responsibilities for the child. Additionally, if a court does not approve the preplanned adoption agreement, the surrogate will assume legal responsibility for the child. 

Is Compensated Surrogacy Legal in Florida?

YesSurrogacy laws in Florida confirm a surrogate’s right to receive compensation and the legal enforceability of these surrogacy contracts; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted.  In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below: 

  • Mock cycle compensation 
  • Embryo transfer compensation
  • Starting medication compensation
  • Monthly allowance for miscellaneous expenses
  • Monthly Housekeeping budget
  • Maternity clothing budget
  • Medical expenses
  • Travel to and from clinic/hospital
  • Lost wages if applicable
  • Child care if bed rest is required
  • Term life insurance
  • Medical insurance
  • Independent legal counsel
  • Psychological counseling
  • Other depending on agency

Creating a Florida Surrogacy Contract

Florida surrogacy contracts are created between the intended parents and a gestational surrogate (and her spouse, if she’s married, to acknowledge that he has no parental rights) 

Intended parents and the surrogate must have separate attorneys in the contract phase.  Fla. Stat. §742.15 requires that the surrogate contracts state at least the following information.

The surrogate must agree that she: 

  • Is the sole source of consent in regards to any clinical intervention of the pregnancy
  • Will submit to reasonable medical evaluation and treatment and will agree to follow all medical instructions
  • Will relinquish all legal rights to the child after he/she is born
  • Will assume legal rights and parental responsibilities for the child born to her if neither intended parent is genetically related to the child 

The contract must also state that the intended parents agree to accept parental rights over the child regardless of any impairment of the baby.

Once the intended parents, the surrogate, and her spouse (if applicable) consent to and sign the surrogacy contract, the medical process of surrogacy can begin. 

Determining Legal Parentage in Florida

Pre-birth orders are typically only available to married couples (same-sex or heterosexual) where at least one intended parent shares a genetic relationship with the child. 

If neither intended parent shares a genetic relationship with the child, or in traditional surrogacy arrangements where the surrogate shares a biological relationship with the child, a post-birth adoption must be completed in order to terminate the surrogate’s parental rights and establish that of the intended parents, pursuant to Florida Ch. 742.15 FL Stat. Florida permits stepparent adoptions as well as adoptions by single intended parents (i.e., similar to second-parent adoptions where unmarried individuals may adopt a resulting child).

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Same-Sex Surrogacy in Florida

Q: Is Same-Sex Surrogacy Legal in Florida?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure. 

Q: Are There any Additional Laws Impacting Same-Sex Parenting in Florida?
A: No. There are no additional laws impacting same-sex parents in this state.

FAQ’s

Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Florida?

A: Yes. Surrogacy contracts are enforceable as long as the surrogate is 18 years or older and the intended parents are married.

Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Florida?

A: No. International Intended Parents are subject to the same Florida surrogacy laws as domestic intended parents.  It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.

Q: When Do Intended Parents Need to Complete an Adoption After Birth?

A: If neither intended parent is genetically related to the child in a gestational surrogacy or when pursuing traditional surrogacy, 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: Yes. Second-parent adoptions are permitted in Florida.  In cases where one of the intended parents in a married couple is not genetically related to the child, a step-parent adoption can be completed. 

Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?

A: Under Florida statute, the donor of any egg, sperm, or embryo, relinquishes all rights and obligations to any children born as a result of their donation (F.S.A § 742.14.).

REPRODUCTIVE LAW PRACTITIONERS

Stephanie Bodolay
Tampa, FL
stephanie@bodolaylaw.com
(813) 445-4928

Marla Neufeld, Esq.
Ft. Lauderdale, FL
marla.neufeld@gmlaw.com
(954) 761-2929

Robert T. Terenzio
Tampa, FL
robert@robertterenzio.com
(407) 992-6600

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