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Surrogacy is a terribly complex section of reproductive law. Across the fifty states laws can vary dramatically.
Florida’s surrogacy law is more restrictive than some states, such as California, but less restrictive than others such as Washington, D.C.
Surrogacy comes in two forms. Most surrogacies come as gestational surrogacy in which the pregnancy is created through in vitro fertilization where the egg from outside the body is fertilized and then implanted in the surrogate’s uterus.
Alternatively, the “traditional “type of surrogacy involves fertilizing an egg within the surrogate with the father’s sperm. This traditional type has fallen out of favor and now makes up only five percent of all surrogacies.
The two different types of surrogacy matter in the law as many states have different laws for traditional versus gestational surrogacy. In Florida, each type of surrogacy is governed by a different statute.
Florida Law on Gestational Surrogacy
Gestational surrogacy is governed by Chapter 742 of the Florida Statutes. In order to form a contract to establish a gestational surrogacy, the prospective couple (called the “commissioning couple” under state law) must be legally married and 18 years old.
Additionally, the contract for a gestational surrogacy must meet several other requirements:
1. The commissioning mother cannot physically gestate a pregnancy to term
2. Gestation would risk the health of the commissioning mother, or
3. The gestation would risk the health of the fetus.
Once establishing the health risks associated with the commissioning mother, the actual contract itself must contain:
1. The gestational surrogate must be the sole person who can consent to the clinical intervention and management of the pregnancy,
2. The surrogate will agree to undergo reasonable medical treatment and adhere to reasonable medical advice on her prenatal health,
3. The surrogate agrees to relinquish any and all parental rights upon the child’s birth,
4. The commissioning couple agrees to take custody of the child upon birth, and
5. The gestational surrogate agrees to assume parental rights for the child if neither one of the commissioning parents is the genetic parent.
Also, under Florida state law the commissioning couple cannot pay an unreasonable sum to the surrogate. The commissioning couple may pay reasonable living, legal, and medical expenses directly related to the prenatal (during pregnancy), intrapartal (during labor), and postpartal (after the birth of the child) periods.
Surrogacy law is highly complex and difficult because it is a relatively new field with less clear rules in certain case. There is little case law in any state, including Florida, on family law including surrogacy because many family courts seal court records in family law cases to protect the privacy of the families.
As such, it is very important that you pick a highly qualified attorney who has experience in surrogacy law to ensure that you follow proper protocols. Contact us for a Consultation at 305-358-2330.