If surrogacy is the next step for your family, Florida surrogacy law applies equally to both heterosexual couples as well as same sex couples.
The surrogacy statute lays out the requirements for a couple to partake in surrogacy for the expansion of their family. One of the requirements is a legally valid and binding contractual agreement.
Florida surrogacy law states:
Fl. Stat. 742.15 (1): “Gestational Surrogacy Contract – Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate. A contract for gestational surrogacy shall not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple are legally married and are both 18 years of age or older.”
The contractual agreement will typically cover the applicable law, the responsibilities of the parties during the process (actions, participation, financial commitments), the restrictions of the parties, possible unintended outcomes or consequences, remedies and solutions for potential circumstances, the financial reimbursement schedule, and any legally required additional documentation that is needed by the court, among many other things. These contracts can be very intensive and it is crucial to work with an attorney who has experience in this area of law, as the details are what protect the parties and many of those details come with knowledge and experience in the field.
As stated above, the statute applies to a “commissioning couple”. Commissioning Couple is defined in Fl. Statue 742.13(2) as “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.” Taken as written, one of the parents must have a genetic connection to the embryo used/ child, the couple must be married, and the couple is made up of a “mother” and “father”. This may confuse same sex couples wanting to partake in a surrogacy journey.
It is important to explain that the requirement of the commissioning couple being a man and woman has not been enforced by the Florida courts for quite some time now. Even before the legalization of same sex marriage, the judges hearing the surrogacy cases in Florida allowed same sex couples to participate in a surrogacy under this law based on the legal argument that it is unconstitutional for a heterosexual couple to be able to do a surrogacy and not a same sex couple. In this case, same sex couples who were not married, could still have a child via surrogacy by way of a “Pre-Planned Adoption” under Florida law 63.213. This law was initially intended for surrogacies where the surrogate is genetically related to the child, but can apply whether the surrogate is a genetic contributor or not. To learn more about a Pre- Planned Adoption for surrogacy, visit this webpage for more detailed information.
More recently however, the legalization and recognition of same sex marriage has further secured this argument, and despite the language of the statute, the surrogacy law applies equally to same sex couples going through a surrogacy process.
Same sex couples and heterosexual couples who are not married and/ or where neither of the parents are biologically related to the embryo used, and therefore the child born of the surrogacy (i.e. donated gametes/ donated embryo), can still take part in a surrogacy by way of the Pre-Planned Adoption law mentioned above. Talk to your attorney to see if this is an option for you.
Some of the other legal requirements for the surrogacy include that the commissioning couple cannot physically gestate a pregnancy to term or that it would be a risk to the baby or commissioning parent’s health (as determined by a licensed physician), the surrogate will relinquish all rights, the parents must take custody regardless of any impairment of the child, and the surrogate agrees to submit to reasonable medical evaluation. You can read the statutory text here.
Once contracts have been completed by the drafting attorney, the contract is sent to the surrogate and her attorney for their review. It is important that everyone involved (the parents and the surrogate) have separate legal representation to avoid conflict of interest, to make sure every party is represented and understands their participation and the law, and to ensure the validity of the agreement. During this time, the contract will be reviewed, negotiated, and modified to meet the needs of the parties. Once the contract is finalized, all parties will sign and the drafting attorney will send the IVF clinic a clearance letter notifying the clinic that the parties can move forward with the medical process and the transfer (important to note that the surrogate should be medically cleared to move forward prior to starting contracts).
During the pregnancy, the commissioning parents’ attorney is available for any issues, questions or concerns that may arise. Towards the end of the second trimester, the attorney will begin to get organized for a pre-birth order (on a case by case basis) and for the final court order to establish the commissioning couple’s parentage over the child. Under Florida law, a pre-birth order is not necessary and will not finalize the couple’s parentage, prior to the birth. There must be a final court hearing which occurs after the birth of the child and with that, the birth certificate can be obtained with the parents’ names on it as the legal parents. Any previous information or records are sealed and there is no mention of a surrogacy or the surrogate on the birth certificate. To learn more about the parentage procedures, click here.
If you are an international couple, you may need additional documents aside from the birth certificate, including apostilled copies of court orders, apostilles of the birth certificate, specific affidavits, passport, etc. Consult your Florida attorney and your home country attorney to work together and obtain everything you need. This is especially important with all of the COVID-19 travel restrictions in place as this may change your timeline and or requirements needed to get home.
Unfortunately, same sex couples still face unique legal challenges that may require additional steps or additional securities to safely establish parentage. For example, some jurisdictions outside of Florida may not recognize the non-biological parent without an adoption of the child (as is the case in many countries), even if both parents appear on the birth certificate. Even for married same sex females who choose to enter an egg sharing agreement (one provides the egg and the other carries the child), these challenges may be best addressed with additional legal protections. The birth certificate is an administrative document and some countries or jurisdictions only recognize parentage by way of birth, genetics, and/or adoption and additionally may not recognize surrogacy. This may mean that even though both same sex parents are on the birth certificate by way of Florida surrogacy law, other jurisdictions may not necessarily recognize the non-biological parent. In this case, a step-parent adoption can help as an added step to ensure the legal parentage between the parent and child.
These challenges can be especially detrimental for international couples and vary greatly between countries, so take the steps necessary to protect your parentage and your family. Ultimately, it is important to speak with an experienced attorney to see what you need, to make this a safe and smooth journey for everyone involved. If you are an international intended parent, also ask about a referral to a local attorney in your home country who can assist with the registration of the child and citizenship upon your arrival home, as well as any requirements you may need from the U.S. prior to heading back home.
There are so many moving parts and pieces involved with a surrogacy process, but seek the proper counsel, build your team, and take it one step at a time knowing that you have Florida law on your side.
Since the start of her career, Stephanie has been able to compassionately help hundreds of Parents, Donors, and Surrogates in their journeys of family building both domestically and abroad. Stephanie is fluent in English and Spanish. Stephanie F Bodolay, Esq. Bay 3, 1905 N Market Street Tampa Florida 33602 P 813.445.4928 F 863.808.0724 E email@example.com W www.bodolaylaw.com