The United States Supreme Court’s June 26th ruling on same-sex marriage not only affords gay and lesbian couples the privilege to marry, it untangles obstructions they have faced when trying to start a family. In Florida, the ruling greatly affects these couples, especially when exploring gestational surrogacy.
It is important to note that same-sex couples have always been able to pursue surrogacy in the state of Florida. However, there is a specific stipulation in the law governing gestational surrogacy that has presented a snag for same-sex partners in the past. In a gestational surrogacy arrangement, the carrier does not have a genetic link to the baby. The sperm and egg are either from a donor or the intended parents. In Florida, the intended parents can make sure the surrogate mother has no legal connection to the child through the creation of a surrogate contract. However, in order to have an enforceable gestational surrogacy contract in the sunshine state, under Florida Statute 742.15, the commissioning couple must be married. That has been the obstacle for gay and lesbian intended parents. Last month’s landmark Supreme Court decision has removed that barrier.
The other type of surrogacy available to individuals wishing to start a family is called traditional surrogacy. In this agreement, the surrogate uses her own egg, which is fertilized through artificial insemination with the sperm of the intended father or a donor. This type of surrogacy may be more risky for the intended parents because the woman giving birth has a genetic link to the child. However, Florida law allows for contracts that terminate the rights of the birth mother and gives legal custody of the child to the intended parents. Traditional surrogacy agreements have never mandated that the intended parents be married so this avenue has remained untouched since the ruling.
Surrogacy law is evolving and can be complicated. Legal decisions and technical advances are changing the way families are created through surrogacy. Make sure you explore all of your options and know your legal rights if surrogacy is in your future.
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If you or someone you know is seeking legal guidance and representation from an experienced surrogacy attorney in South Florida, please contact Klein Law Group at 561-220-6659 or fill out the contact form on our website at www.kleinattorneys.com. We offer a free 30-minute consultation to discuss your individual case in family law, bankruptcy and real estate. Our offices are located in Boca Raton, West Palm Beach and Fort Lauderdale, Florida.