By: Marla Neufeld, Esq.
Welcome to the Sunshine State. We have beaches, the Everglades, 75-degree winters, and… surrogacy. Before diving into a surrogacy journey, it is important to get your feet wet and understand the legal processes involved in your applicable state; in this guide, it is the state of Florida.
Each state has different laws, or no laws at all that govern surrogacy; in some states, it is considered a crime to compensate a surrogate. Other states do not have clear laws or procedures governing surrogacy and this could create legal uncertainty for the parties. Florida is a surrogacy-friendly state. In Florida, anyone who wants to pursue surrogacy, whether you are married, single, same-sex couple, or a person or couple using a donor egg, donor sperm, or donated embryos can legally pursue surrogacy and have a clear path to parenthood.
Keep in mind that this guide pertains to “gestational surrogacy” where the surrogate does not have a genetic connection to the intended parent(s)’ child. Contrast “gestational surrogacy” to “traditional surrogacy” where the surrogate is genetically related to the child, however, that is a different legal process altogether within Florida’s adoption statute.
Once you are matched with a surrogate, either through a surrogacy agency or via a self-match and your chosen surrogate receives full medical approval from the IVF clinic and psychological approval from the mental health professional, it is officially time to start the legal agreement between the intended parent(s) and surrogate (and her spouse/partner, if applicable). In Florida, the legal process is divided into two (2) main stages:
the Florida Gestational Surrogacy Agreement entered into and is between the intended parent(s) and the surrogate and her spouse (if applicable); then
the Florida Parentage Proceedings to place the intended parent(s) on the birth certificate, to the exclusion of the surrogate.
We will dive into the 2 main legal stages below. Grab your sun gear, your notepad, and your Florida reproductive attorney, and let’s jump into the Florida surrogacy legal process.
The Florida Gestational Surrogacy Agreement:
The Florida Gestational Surrogacy Agreement is to be drafted once the surrogate has full medical approval from the intended parent(s)’ In Vitro Fertilization (IVF) physician and full psychological approval from the mental health professional. Both screenings are paid for by the intended parent(s). The intended parents(s) will be represented by their own reproductive attorney. It is best practice for the intended parent(s) to pay for a separate reproductive attorney to represent the surrogate to review the Gestational Surrogacy Agreement with her and if applicable, her spouse/partner.
While the intended parent(s) do not need to be based in Florida to utilize Florida’s surrogacy laws (intended parent(s) are many times located around the United States and around the world), the surrogate being based in Florida will allow the use of our friendly Florida surrogacy laws.
Florida law permits the intended parent(s) to pay the surrogate for her reasonable living, legal, medical, psychological, and psychiatric expenses that are directly related to prenatal, intrapartal, and postpartal periods of the pregnancy. Florida surrogacy laws are clear that after birth the intended parent(s) must assume rights to the baby and conversely, that the surrogate terminates any parental rights to the baby. The surrogate cannot change her mind and keep the baby in Florida unless the baby is her genetic child(ren) (i.e. she had intercourse and conceived at a time she was prohibited from doing so which would also result in a breach of the Gestational Surrogacy Agreement).
In addition to the financial points that are included in the agreement and are typically established during the matching process, a Florida Gestational Surrogacy Agreement addresses many different topics such as confidentiality, future contact, assumption of risks, how many embryos will be transferred, and how many embryo transfers can occur; some agreements even address evacuations in the event of a hurricane or other natural disaster as well as all parties understanding on whether an abortion or selective reduction will occur if requested by the intended parent(s) or needed for the life or safety of the surrogate.
It is important for intended parent(s) to consult with an experienced reproductive attorney licensed in Florida prior to starting the surrogacy process. One of the first determinations is whether the parties have the appropriate connections to Florida to utilize Florida surrogacy laws. Florida has a more unique provision in the surrogacy laws that requires a medical necessity to pursue surrogacy in Florida as determined by a doctor which includes that the intended parent(s) cannot gestate to term, or if a pregnancy would be a risk to the physical health of the intended mother or a risk to the health of the fetus. Another important consideration is the applicable Florida surrogacy laws differ depending on the facts of the case. One set of Florida laws governs surrogacy for married couples using the genetics of at least one member of the intended parent(s) and another set of Florida laws governs surrogacy arrangements for single intended parents, unmarried intended parents, or intended parent(s) using donated embryos. Regardless of the Florida laws utilized, surrogacy is possible for everyone in Florida.
Once the Gestational Surrogacy Agreement is fully executed by the intended parent(s) and surrogate and her spouse/partner (if applicable), the intended parent(s)’ attorney will issue a legal clearance letter to the IVF clinic to allow the embryo transfer cycle to proceed.
The Florida Parentage Stage of Surrogacy:
In Florida, the intended parent(s) will be placed on the Florida birth certificate following a statutorily based court proceeding that occurs immediately after the birth of the child(ren). Once the child(ren) is born in Florida via surrogacy, Florida law requires that within 3 days of the birth, the intended parent(s) petition the selected Florida court for a post-birth court order directing the Florida Department of Vital Statistics to issue a birth certificate naming the intended parent(s) as the sole legal parent(s) of the child(ren). Once the final court order is entered following the birth of the child(ren), the Florida birth certificate in the name(s) of the intended parent(s) is issued shortly thereafter to the intended parent(s). The birth certificate will allow the intended parent(s) to obtain a Social Security number and United States Passport for the child(ren). The court proceedings in Florida are treated with the highest level of confidentiality to protect the privacy of all parties involved. All hearings in Florida are held in closed court and the pleadings and information filed with the court are sealed. The intended parent(s) and surrogate and her spouse/partner (if applicable) likely will not be required to attend the hearings relating to the parental right actions referenced above however this would be a determination to be made by the intended parent(s)’ reproductive attorney and the applicable jurisdiction involved in the matter.
While the court proceedings required to place the intended parent(s) on the Florida birth certificate is obtained after the child(ren) is/are born, it may be beneficial to discuss with your Florida reproductive attorney the option of additionally obtaining a Florida pre-birth order around the second trimester of pregnancy to provide to the hospital in advance of the delivery to ensure a smooth delivery process. The post-birth court order is what allows a birth certificate to be issued removing any reference to the gestational surrogate from any birth record and naming the intended parent(s) as the sole legal parent(s) of the child(ren). The surrogate’s name will never be placed on the Florida birth certificate.
Elton John is notorious for building his family via surrogacy. He once sang about Florida with his lyrics, “I hear it’s hot in Florida. And it’s raining here tonight. But the sun’s gonna shine tomorrow. And I’m gonna do alright.” Elton, you are right about Florida and that also goes for the Florida surrogacy process, the sun is going to shine on your Florida surrogacy journey and in following best surrogacy practices, your “gonna do alright!”
Information on Marla Neufeld, Esq : Marla is the chair of Greenspoon Marder’s Surrogacy Law practice group, a full-service law firm, founded in 1981. Marla’s personal experience with surrogacy affords her the ability to provide an array of available third-party reproductive technologies and adoption laws in Florida. Marla is also the co-author of the book published by the American Bar Association, The ABA Guide to Assisted Reproduction: Techniques, Legal Issues, and Pathways to Success . For more information, click here .
The Surrogacy Space: Ep. 1 – Welcome Episode – with Marla Neufeld, Esq.
