Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate.
— Fl. Stat. 742.15(1)
Florida law specifically allows and lays out the requirements for a surrogacy journey. One of the requirements is a valid legally binding contract between the Intended Parents and the Gestational Surrogate.
A contract will evidence the parties’ intent and protect the parties from legal disarray during the pregnancy and after the birth, easily allowing the Intended Parents to establish their parentage over their child.
Florida Statute Law 742.15
Surrogacy Law in Florida
The law governing Gestational Surrogacy in Florida has been legislated since 1993. It provides a legally safe structure to the process that protects both the Intended Parents and the Getational Surrogate.
For those becoming parents via Gestational Surrogacy, the firm will explain the law’s requirements and the process, advise the client’s on their rights and responsibilities, draft the required contract, negotiate the contract with the surrogate’s attorney, provide clearances for the IVF clinic, and maintain close contact and communication with the agencies and clinics involved. Medical affidavits and other necessary agreements will also be provided. Additionally, the firm will provide the advisement necessary throughout the process for each individual circumstance.
For those who will be a Gestational Surrogate, the firm can provide competent representation to you. The contract will be reviewed on your behalf in order to make sure everything is clear and also to make sure that the contract protects you throughout the process in accordance with the law. Final signatures will be obtained and a copy of the final contract will be provided.
For any questions regarding the specifics of the Gestational Surrogacy work, please contact the office for a free consultation.
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.
Frequently Asked Questions
When should clients reach out for legal?
You can reach out for an initial consult as early as you would like in your process, the earlier the better. The medical testing, evaluation and exams to see if the Parties qualify for the assisted reproductive technique required can occur before the contracts are finished, but you can also reach out to legal before.
However, in order to begin any of the medical side (i.e. start taking medications before transfer of embryo into partner or gestational surrogate, donor taking stimulation medication before the extraction of her eggs, etc.), the legal contracts have to be completed and signed by all of the parties, so keep that in mind for your timeline when deciding when to reach out to the attorney.
Does the surrogate need to have an attorney?
Although it is not required by law for the surrogate to be represented, it is in both your and your surrogate’s best interest to have an attorney knowledgeable about surrogacy law explain the agreement. It is an industry standard to have all Parties represented in these processes for everyone’s legal protection during the process and to avoid any issues after the fact as well.
Who pays the surrogate’s legal fee?
The Intended Parents will typically pay for the surrogate’s legal representation for review of the contract between the parties.
Can the surrogate change her mind?
A common question is “can the surrogate run off with my baby?”. Under Florida law, if everything is done in accordance with the statute (i.e. parties are over 18, infertility requirements are met, there is a contract in place, etc.) and the child is not genetically related to the surrogate, the surrogate does not have a valid claim to the child. As long as it is in accordance with our laws, the parents are the legal parents of the child.
Is a contract required?
Under Florida law, a contract is explicitly required between the parents and the gestational surrogate and her spouse, if she is marred. Aside from the legal requirement, a contract is important to the process for many reasons, including but not limited to, address the parties’ intentions, spell out the timeframes and commitment times, comply with the law, include the financial reimbursements in detail, state safety restrictions, provide remedies for potential causes of breach and/or unexpected events, provide the insurance information and its application, and establish the parties’ responsibilities, among other things.
Are the surrogacy laws the same everywhere in the United States?
How long does the first draft of surrogacy take?
Once all of the information has been sent to the attorney, the first draft of the Agreement will take approximately 3 business days.
When does it need to be signed?
Once all of the parties have reviewed, negotiated, and agreed to a final contract with their attorneys, the Parties can sign with a notary. The Parties do not have to sign at the same time or the same copy of the Agreement, as long as it is all signed in a timely manner and the signed copies are exact originals.
I don’t live close to your office. Do I need to go to your physical office during the process?
The firm works with many international and domestic clients who do not live nearby. Presence at the office is not required at any time during the process. The work can be accomplished via telephone, skype, email, and physical mail, however, face to face meetings are available at the office location.
What's the difference between Traditional vs. Gestational Surrogacy?
Although still done, Traditional Surrogacy is not as popular as it used to be. In a Traditional Surrogacy, the surrogate is providing her genetic material, so the child is genetically related to her. The post birth procedure requires a termination of her rights.
In a Gestational Surrogacy, which is more popular today, the surrogate is not genetically related to the child at all and instead an embryo is implanted that belongs to the Intended Parents. The post birth procedure does not require a termination by the surrogate but only affirms the Intended Parents’ parentage of the child.
I’m not a US citizen, can I still go through the process in the US?
Yes, international clients can come to Florida to have a child via surrogacy and it is a good option for those facing bans on surrogacy or unpredictable outcomes due to lack of laws in their home countries. For specific information about the process for you, you can reach out for an initial consult.