Understanding Florida Surrogacy Laws: A Comprehensive Overview

Surrogacy in the State of Florida: An Introduction

Central Florida Surrogacy attorneys continue to see folks choose surrogacy as a ways of forming or growing their families. In order to understand the process you must first understand what a surrogate actually is. The intended parents are those that will using the surrogate. The surrogate can either be a gestational or traditional surrogate. A gestational surrogate is someone that carries the child and does not produce the egg used in conception. A traditional surrogate is someone that provides one of the sperm or egg used in the conception of the child that she will carry. In many cases the surrogate is artificially inseminated by the intended parents choice of sperm. The Florida Surrogate Law was created in 2015 and outlines the parties and their responsibilities under the agreement. In Florida a gestational surrogate must be at least 18 years of age and undergo a psychological assessment by a mental health professional. The intended parents are required to undergo a criminal background screening. In addition , the surrogate should carry insurance in order to cover any issues that may arise during her pregnancy. Surrogates may elect to use some of the compensation that they will be paid under the surrogacy agreement to purchase a policy.
Surrogacy is a beautiful concept that allows those that cannot conceive a child the ability to do so in spite of challenges they may be facing with infertility issues. The law in Florida also allows for some leeway in that any intended parents do not have to actually use reproductive technology in order to establish their parental rights. They may simply be individuals that are looking for a gestational surrogate for other reasons. Most importantly, surrogacy allows for intended parents to secure their European rights before the baby is born through a court order.

Florida Surrogacy Laws: The Legal Framework

Surrogacy laws in Florida are governed by several statutes, namely Florida Statute 63.213, which outlines the requirements for both gestational and traditional surrogacy agreements, and Florida Statute 742.15, which specifically addresses the requirements of traditional surrogacy agreements. The Florida Office of Vital Statistics mandates the following:
When working with a gestational surrogate, intended parents must establish a legal parentage agreement post-birth to ensure that their names appear on the child’s birth certificate. An Order of Parentage must be obtained after the birth of the child that establishes the legal parentage of the parents pursuant to the surrogacy contract. Post-birth surrogacy agreements are best established with the aide of a knowledgeable surrogacy attorney.
Florida Statute 742.15 outlines the requirements of traditional surrogacy arrangements, which do not require a surrogacy contract. According to Florida Statute 742.15, a surrogate is a woman who bears a child conceived by artificial insemination using her ovum and the sperm of the intended father or a donor other than her husband.
Further, the statutory definition of an intended parent describes the following:

2. "Intended parent" means a man and woman who have entered into a surrogacy contract with a gestational carrier pursuant to s. 742.13. 3. "Men" means a man who has donated his sperm for the purpose of artificial insemination.

The intended parents must then register themselves and the surrogate with the Department of Vital Statistics. Intentional misrepresentation of any facts in the listing is a third degree felony.
Although Florida law allows for traditional surrogacy arrangements, they have not always been private. The Florida appellate court in Litowitz v. Kimble, 569 So.2d 474 (Fla. 4thDCA 1990) substituted the surrogate’s husband on the birth certificate for the intended father, causing the intended mother’s former spouse, the surrogate’s husband, potentially lessening her claim to adopt the child. The court explained that owing to different interests, both surrogates and intended fathers should be allowed the opportunity to undergo paternity blood tests before being listed on the child’s birth certificate.
Under Florida Statute 63.213(3), the surrogate and intended parents must be able to establish that they have met the prerequisites of the surrogacy requirements for a surrogacy contract to be enforceable. As such, the statute considers the surrogacy contract valid if:
(a) The surrogate and intended parents are not in a sexual relationship; (b) The surrogate is compensated for carrying the child; (c) Independent, legal representation for the surrogate; (d) The surrogate has completed a medical and psychosocial evaluation; (e) The surrogate was provided with sufficient information about the risks of the procedure; (f) The surrogacy contract was verified by the court.
If the individual situation has not fully satisfied the statutory requirements, surrogacy is still permissible under Florida law if the parties notify the appropriate Florida Circuit Court upon filing the surrogacy contract.

Laws on Surrogacy in Florida: The Different Types

Florida law permits two primary types of surrogacy arrangements: traditional and gestational, with the latter being the most common. Traditional surrogacy arrangements are those where the carrier is the biological parent of the child or children born through the surrogacy contract. These arrangements can be "straight" or "reciprocal". A straight arrangement is when a woman agrees to bear a child for a male intended parent or parents, and a reciprocal arrangement is when a woman agrees to bear a child for a female intended parent or parents. Given the child will be biologically related to the carrier or surrogacy provider in these arrangements, the risk of successfully obtaining final parentage is reduced. Traditional surrogacy arrangements may require a higher level of due diligence and protection for intended parents.
Florida law allows gestational surrogate arrangements, where the carrier has no genetic relation to the child or children born through the surrogacy contract. Florida Statute section 742.15 governs gestational surrogacy and only applies to contracts that are entered into after October 1, 2008, and where medical procedures are used to conceive the child or children at issue. This means that pre-conception contracts executed prior to October 1, 2008, fall under the ambit of Section 63.212 as opposed to Section 742.15. The Florida statute also provides if the contracts are entered into prior to such date, a court may determine parentage if the gestational surrogacy provider is genetically or otherwise related to the child or children at issue. Outside of the gestational surrogacy context, Section 742.15 does not govern contracts entered into where medical procedures are not used to attempt to conceive a child or children through a surrogacy contract. Courts in Florida have found that Florida’s adoption laws are the proper means for establishing final parentage where parties do not rely on medical procedures to conceive a child or children.

Florida Statue Law on Surrogacy: Legal Requirements for Intended Parents

In order for intended parents to enter a surrogacy agreement in Florida they must be of the age of consent (18 years) and, under some circumstances, be married. In some cases, a single parent may seek a surrogate mother to carry a child for them. Florida surrogacy law however, is intentionally vague on the issue of marital status for intended parents so it’s critical that the surrogacy agreement you enter is drafted by an attorney with extensive surrogacy experience.
Regardless of marital status, Florida law requires all parties to the surrogacy agreement – the surrogate mother, the intended parents (or, in the case of egg donation, and the egg donor), and any husband of the intended mother or intended two female parents, to be represented by separate lawyers. In addition, they must all attend a court hearing to enter their consent prior to the birth of the child.

Florida Synonyms for Surrogate and Responsibilities of the Surrogate

As with the legal rights of Intended Parents, the legal rights of the Surrogate require an understanding of the law. For example, how does the law protect the Surrogate in Florida if she has a medical complication? What if she has to miss work because of her pregnancy and is unable to support herself? What obligations does the law and/or the Intended Parents owe her if the Intended Parents decide they no longer want to continue with the situation, for whatever reason, and wish to discontinue providing the monthly living expenses? Are these expenses refundable? Who is responsible for the medical expenses related to the pregnancy? What if the Surrogate is not paid her monthly living expenses on time or at all? Does she have the right to enforce payment? What legal recourse does she have? These are just some of the questions that Sheela shared with us during the webinar.
While this list is not exhaustive , it is intended to highlight the importance of knowing the legal rights of the Surrogate and the Intended Parents, as well as addressing what happens to the legal rights of the parties during any unforeseen circumstances that may create a hitch to the entire Surrogacy arrangement. The Registered Surrogate Contract should address all of these contingencies so that the Surrogate’s and the Intended Parents’ legal rights are protected. Detailed conversations between the intended parents and their surrogate when deciding what should be included in the agreement have a great deal of value.
Visiting with a lawyer regarding the legal risks and protections is certainly a good idea from an overall risk management perspective.

How Does a Surrogate Arrangement Work in Florida

The different steps in arrangement of surrogacy in Florida involve steps that require all parties to be on the same page and have legal representation. Once the decision to have a surrogate has been made, the prospective parents and the surrogate enter into an agreement (written contract) regarding compensation and conditions of the pregnancy. In Florida, this is typically performed by a Gestational Carrier Agreement. Once this contract is signed, the hospital will be notified so that all of the medical facilities, including payment, can be discussed.
A surrogate also needs to have certain qualifications: A surrogate must have given birth to a child previously, and can only be a gestational carrier if she has no genetic relationship to the child. An intended parent—who can be the genetic mother or father—needs to have a medical need for surrogacy. If a husband cannot contribute his sperm for any reason, a man or woman can use a sperm donor or an egg donor. Most intended parents opt for both. Child support and other bills must be paid by the intended parents. Some surrogates may not be able to continue with their individual issues.
Surrogacy arrangements in Florida are specifically regulated. Florida Statutes § 742.15 requires that a surrogate and intended parents live in-state, and be residents of Florida for at least 90 days before giving birth. Florida Statutes § 742.14 mandates that after five days, either pregnancy can be canceled. A court will find it as such on behalf of the surrogate and intended parents. The intended parent’s name(s) are placed on the birth certificate.

Florida Surrogacy: Potential Legal Issues

Challenges can arise during or after the surrogacy process. Not every person is honest about their intentions, and contractual disputes do occur. Here are some of the most common challenges and how they can be resolved.
Fraud
Fraud occurs when any party takes action with the intention of cheating another party, such as breaking surrogacy contract conditions. For example, if a surrogate continued drinking alcohol or taking drugs during her pregnancy in order to hurt the baby and the intended parents, the intended parents may have grounds for fraud. If this is proven, the intended parents can sue the surrogate for damages.
Unintended Pregnancy
A surrogate who has agreed to put up her eggs (sperm from a male is also an option) could have an unintended pregnancy if born the traditional way. Surrogates typically undergo IVF (in vitro fertilization) in order to eliminate the chance of an unintended pregnancy. However, IVF can fail.
If an IVF fails, the surrogate may go through the procedure again, or the intended parents can use another egg donor or sperm. If the surrogate still gets pregnant, she may be pushing her luck.
No matter what, her contract may need to be modified. The surrogate should not be held to the contract; a temporary surrogate may carry her embryo.
Guardianship Issues
There have been disputes over guardianship of the child in certain circumstances. The intended parents may be denied guardianship if the surrogate has lied about her background.
Parentage Orders
Parentage orders are required in Florida in order to protect the rights of parents, children and the surrogate. The laws are complicated, and only experienced surrogacy lawyers should file for one.

Final Thoughts on Florida Surrogacy Statutes

In conclusion, surrogacy is an exciting yet complex process. Florida’s surrogacy laws and regulations are designed to protect all parties while ensuring the rights of both the intended parents and the child are upheld. While the emotional and physical aspects of surrogacy can be challenging, having a clear understanding of Florida surrogacy laws will help you navigate the process more effectively .
It is crucial to consult with an experienced family law attorney who specializes in surrogacy to ensure you are fully aware of your rights and legal responsibilities throughout the process. A qualified attorney can guide you through the various steps and help protect your interests along the way.
Although the surrogacy process can be overwhelming, it is also an incredibly rewarding journey for all involved. By having a solid grasp of Florida surrogacy laws, you will be better prepared to face any potential challenges that may arise.