Florida Law

Chapter 742.15 FL Statutes addresses gestational surrogacy. Gestational surrogacy is where the embryo transferred to the surrogate is NOT genetically related to her at all. The statute delineates who can utilize surrogacy as well as when and specifies the need for a legally binding contract.

The statute allows for married couples, known in the statute as the “Commissioning Couple”, over the age of 18 to have their child via surrogacy and at least one of the parents must be a genetic contributor to that child. The statute also states that, “within reasonable medical certainty as determined by a physician”, the commissioning mother must not be able to gestate a pregnancy to term, or the gestation will cause a risk to the physical health of the commissioning mother, or, the gestation will cause a risk to the health of the fetus.

         Additionally, the statute specifies a few requirements for the contract, including the Intended Parents’ reimbursement of the Surrogate’s expenses and that the Surrogate must submit to reasonable medical evaluation and treatment and adhere to the medical instruction. The contract must also include that the Surrogate agrees to relinquish any and all rights to the child born of the surrogacy. This is important since many wonder whether the surrogate has any rights to the child; under Florida law, the surrogate does not.

         One important deviation from the legislated law is that although Florida statutes define Commissioning Couple as a married man and woman, after Obergefell v. Hodges, married same sex couples can also legally have a child via surrogacy under the same statute. Single parents and unmarried couples can also have children via surrogacy, however that would be governed by a different statute, FL Statute 63.213 (see below for more information).

         Florida Statute 742.16 lays out the legal procedure for affirming the Commissioning Couple’s legal rights to the child. This statute states that the petition must be filed within 3 days of the birth and the hearing can be scheduled for immediately after filing the petition. This expedited scheduling helps shorten the timeframe for obtaining the child’s birth certificate. Additionally, the statute states that the attorney can be present at the hearing without the parents, meaning the parents do not need to worry about being at a hearing with a newborn. Additionally, all papers and records pertaining to the affirmation of parentage are confidential.

FL Statute 63.213 is the Pre-Planned Adoption statute and addresses both gestational and traditional surrogacy, traditional being where the surrogate is genetically related to the child. Originally, the purpose of this statute was to address those cases where the surrogate was a traditional surrogate and therefore a genetic contributor to the child. However, in time, practice has moved away from traditional surrogacy since 1) the traditional surrogate has 48 hours to revoke her relinquishment of rights and 2) technology has made gestational surrogacy more accessible.

            Although originally intended for traditional surrogacies, the statute was later amended to include a surrogate who is NOT genetically related to the child. In the case where the child is not related to the surrogate, the amendment made it clear that there is NO 48-hour revocation period for the surrogate to revoke her relinquishment of the child. The state states, “The volunteer mother’s right to rescind her consent in a preplanned adoption applies only when the child is genetically related to her.”

            Significantly, this statute has no marriage requirement for the Intended Parent and therefore is a legal avenue for single parents to have a child via surrogacy. Like the Gestational Surrogacy statute, this statute outlines similar requirements for the contract including that the surrogate must submit to medical evaluation and treatment. Unlike the Gestational Surrogacy statute (FL Statute 742.15), there are a few additional legal steps that may need to be taken at the moment of birth in order to establish the Intended Parent’s parental rights and these can vary between jurisdictions, but overall, the process is very similar. For more details, schedule a consultation with the firm and learn more.  

Florida Statute 742.14 addresses gamete donation. The statute succinctly and clearly states that the donor of any egg, sperm, or preembryo, relinquishes any and all parental rights and obligations to the gamete donated and any child born of that donation. This means that a donor cannot later claim parental rights over a resulting child, nor can an Intended Parent seek child support or enforce other legal responsibilities on the donor for that child.

The statute provides for two exceptions to this: 1) any gamete used by a Commissioning Couple for a Surrogacy under 742.15 and 2) gamete contributed by a parent under the Pre-Planned adoption statute for a surrogacy under 63.213 (see above for more details on those statutes). This means that a Commissioning Couple and an Intended Parent having a child via surrogacy are not relinquishing their rights to the gametes and embryo transferred to the surrogate in either a Gestational or Traditional Surrogacy under 742.15 and 63.213 respectively. The statute also permits reasonable compensation as directly related to the donation.