A surrogate is a person who acts on someone else’s behalf or as a substitute. In fertility law, a surrogate mother is a woman who carries a child for another person. Florida recognizes two forms of surrogacy with different parental rights for the surrogate mother.
What Are the Types of Surrogacy Recognized by Florida Law?
Florida law recognizes two types of surrogacy. Whether a surrogate mother has parental rights depends on the type of surrogacy the parties choose.
Traditional surrogacy is governed by Florida Statute §63.213, which is part of the Florida Adoption Act. Gestational surrogacy is governed by Florida Statute §742.15, which is part of the laws governing the determination of parentage.
Florida’s Traditional Surrogacy Laws
In traditional surrogacy, artificial insemination is used to fertilize the surrogate mother’s egg with sperm from the commissioning father. Therefore, the surrogate mother is the biological mother of the child. As such, she has parental rights until she relinquishes her parental rights.
Traditional surrogacy is similar to an adoption. The parties sign a preplanned adoption agreement outlining their agreement that the surrogate mother will become pregnant and terminate her parental rights after the birth. The intended father acknowledges that he is the biological father of the unborn child, and he must assume parental rights and responsibilities once the child is born.
The surrogate mother retains her parental rights throughout the process, even though she agreed to terminate the parental rights after the child’s birth. The surrogate mother has up to 48 hours after giving birth to revoke her consent to terminate parental rights. In that situation, she would be the legal mother, and the man donating the sperm would be the legal father.
A surrogate mother can also retain her parental rights if the parties terminate the preplanned adoption agreement during the pregnancy or the court does not approve of the agreement.
Florida Gestational Surrogacy Laws
With gestational surrogacy, a married couple enters into a surrogacy contract with a woman for her to carry their child. The married couple’s fertilized egg is implanted into the gestational surrogate. Under this form of surrogacy, the surrogate is not the child’s biological mother. Therefore, she consents to transfer legal and physical custody of the infant to the couple when the child is born.
Even though the couple are the biological parents and the parties have a written surrogacy agreement, many couples choose to obtain an affirmation of parental status before the surrogate gives birth. The “pre-birth order” is filed within three days after the child’s birth, which should result in an order confirming the couple are the legal parents of the infant.
Why Is It Important To Address Parental Rights During Surrogacy?
Parental rights bestow the parents with the right to make decisions for their children. Only a child’s legal parents have parental rights. In a traditional surrogacy arrangement, the surrogate is the legal mother until she relinquishes her parental rights. If she is married, there is a rebuttable presumption that her husband is the child’s legal father.
Therefore, unless a surrogacy agreement is drafted by an attorney who is familiar with Florida surrogacy laws, problems could arise after the child’s birth. The biological father may need to file a paternity action if the surrogate’s husband asserts that he is the child’s legal father.
The same is true with gestational surrogacy if the surrogate refuses to relinquish custody. Court action would be necessary to confirm the child’s biological parents.
Elements of a surrogacy agreement typically include:
- Who is responsible for paying for the health care costs for the surrogate mother and the costs of labor and delivery?
- The compensation paid to the surrogate mother, if any
- The agreement for the surrogate to transfer her parental rights to the adoptive mother and legal and physical custody to the couple in a traditional surrogacy
- The transfer of custody to the commissioning parents in a gestational surrogacy
- What happens should the pregnancy fail to result in a live birth or it is determined that the infant is not the biological child of the commissioning parents
A well-drafted surrogacy agreement can avoid many of the problems that can arise in a surrogacy situation. To ensure that all parties understand their legal rights and responsibilities, they should have separate legal counsel when negotiating and signing a surrogacy agreement. Having separate counsel for each party also reduces the risk of a party claiming they did not understand the agreement or were coerced into signing the surrogacy agreement.
If you have questions about Florida surrogacy laws, you can discuss your concerns with an Orlando family law attorney.
Contact the Orlando Family Law Firm of Conti Moore Law Divorce Lawyers, PLLC for Help Today
For more information, contact our experienced Orlando family law lawyers at Conti Moore Law Divorce Lawyers, PLLC by calling (407) 831-0203 to schedule a free consultation.
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