Having children through a surrogate is becoming increasingly prevalent in the United States. Florida is one of the few states that officially recognizes contracts for both gestational and traditional surrogacy arrangements as well as egg and sperm donations. Since Florida’s laws protect the rights of the intended parents, the surrogate, the baby, and the egg donor, Florida is chosen by many to be an ideal place to expand their families via surrogacy.
Florida law requires the parties to a surrogacy agreement to enter a binding contract. These matters are technical and require an experienced attorney with experience in anticipating and resolving the host of issues facing couples who seek to create families in this way. It is imperative that the rights and obligations of all parties in the contract be clearly spelled out for their protection in the event complications arise.
There are two types of surrogacy: Traditional and Gestational
- Traditional surrogacy — the surrogate uses her own egg, which is commonly fertilized through artificial insemination with the sperm of the intended father or a donor. If the procedure results in a pregnancy, she will carry the infant until the time of delivery. This is referred to as “Preplanned Adoption” by Florida Statute 63.213, and the surrogate has 48 hours after she gives birth where she may repeal her consent to surrender the child. In most states, this kind of surrogacy is more risky for the intended parents because the woman giving birth has a genetic link to the child. However, Florida law explicitly provides for contracts that terminate the rights of the birth mother and gives legal custody and control of the child to the intended parents.
- Gestational surrogacy — this method offers intended parents a higher level of legal and emotional security. During this process, the carrier does not use any of her own genetic material to produce the baby. The sperm and egg are either from a donor or the intended parents. If the procedure results in a pregnancy, she will carry the infant until the time of delivery. Because of the legal provisions under Florida Statute 742.15, parents can be sure that the surrogate mother has no legal connection to the child through a surrogate contract. This kind of statutory protection is absent in most other states in the nation.
Klein Law Group Represents All Parties in Traditional and Gestational Surrogacy
Surrogacy law is a growing area with complex legal issues. Scientific advances in the field of assisted reproduction keeps arrangements evolving at a rapid pace. If you are a party in an arrangement, or considering a surrogate pregnancy, you need qualified legal counsel. The attorneys at Klein Law Group can protect your rights and anticipate and address potential problems.
We Represent Intended Parents
We create a comprehensive agreement for the intended parents that is crystal clear to avoid any roadblocks in the process. The contract addresses all potential risks and probable events so that the intended parents feel confident about the birth plan. All parties involved will understand their roles and their rights to alleviate any concerns that may emerge along the process.
We Represent Surrogate Mothers
Our attorneys at Klein Law Group ensure that birth mothers’ rights are secured and protected. We make sure surrogates know about the medical risks that are possible and assure them that their participation will be fairly and legally compensated. We not only negotiate benefits for the surrogate, but also for their spouse and children, if applicable.
The surrogacy attorneys at Klein Law Group guide you through the process.
- Negotiate and draft traditional and gestational surrogacy contracts
- Explain your rights and responsibilities under the contract
- Resolve any disputes through mediation or litigation
- Set up and manage escrow accounts or trust funds for the baby
- Prepare all communications for physicians and other parties involved in the process
- Ensure necessary paperwork is submitted to streamline the birth registry process
- Communicate on your behalf with hospital staff and social workers to protect your rights
- Secure a pre-birth order that defines the rights of the intended parents
- Manage and disburse funds in accordance with the terms of the surrogacy contract
- Handle all legal services needed to help you establish your legal rights to your child
Requirements for a Valid Gestational Surrogacy Contract in Florida
In order to have an enforceable gestational surrogacy contract in the state of Florida, the following must be met under Florida Statutes 742.15 and 742.16:
- The surrogate must be 18 years of age or older.
- The commissioning couple are married and both 18 years of age or older.
- A physician has determined that the commissioning couple cannot physically gestate a pregnancy to term or that the gestation would cause a risk to the commissioning mother or the gestation would cause a risk to the health of the fetus.
- The commissioning couple agrees that the surrogate will be the sole source of consent with respect to the management and clinical intervention of the pregnancy.
- The surrogate agrees to reasonable medical evaluation and treatment and to adhere to reasonable prenatal medical instruction.
- The surrogate agrees to relinquish all parental rights upon birth and to cooperate with the judicial proceedings.
- The couple agrees to accept custody and full parental rights and responsibilities of the child upon birth regardless of any physical impairment.
- The surrogate agrees to assume parental rights and responsibilities of the child if neither member of the commissioning couple were the genetic parent of the child.
- The commissioning couple agrees to pay only the reasonable living, legal, medical, psychological and psychiatric expenses of the surrogate that are directly related to the prenatal, intrapartum and postpartum periods.
What’s the next step?
Yes. An enforceable and binding gestational surrogacy contract must be created between the gestational surrogate and the intended parents under Florida Law. The contract details each party’s intentions and responsibilities to one another. The agreement definitively states that the surrogate will relinquish parental rights upon the child’s birth and that she does not plan on parenting any resulting child nor does she wish to have physical or legal custody of any resulting child. The agreement will also define the rights and responsibilities of the intended parents.
No. Florida recognizes the gestational couple as the presumed parents of the child as long as one of the commissioning parents shares genetic material with the child (i.e. either dad’s sperm or mom’s egg).
This matter would be spelled out in the contract along with the other rights and duties of the parties involved. The commissioning couple has the right to preclude any person from having access to their child. After the child is born, the gestational surrogate has no additional rights to the child (unless stated in contract).
While it is not required that a surrogate be represented by an attorney, it is recommended that both the surrogate and the commissioning couple have an attorney experienced and knowledgeable in surrogacy law.