The following summary is only meant as an overview of the existing law in Florida and not as the dispensing of legal advise. It is not meant to provide specific answers to your questions or to act as a substitute for the hiring of a lawyer to represent you in these cases. Florida law clearly provides for the parties to each hire their own attorney to represent them in these matters.
Florida has very favorable surrogacy/gestational carrier statutes that recognize contracts for traditional surrogates, egg donors, sperm donors and gestational carriers. All parties participating in these contracts must be at least 18 years of age.
Contracts for Donor of Egg, Sperm and Pre-embryos
These contracts are legal in Florida. The contract itself can require the relinquishment of all maternal or paternal rights and obligation of the resulting child(ren). Florida permits only reasonable compensation directly related to the donation. Florida Statute 742.14.
Contracts for Gestational Carrier
These contracts are also permitted in Florida. The statutes specifies the provisions which must be included in order for the contract to be enforceable. The contract will only be enforceable if the 'commissioning couple' (the intending parents of the child) be over the age of 18, married to each other, and that a physician licensed in Florida has determined that, 'within reasonable medical certainty': 1) the commissioning mother cannot physically gestate a pregnancy to term; 2) the gestation will cause a great risk to the physical health of the commissioning mother; 3) the gestation will cause a risk to the health of the fetus. The statute further requires the contract to include that the gestational carrier be over the age of 18, that she agree to submit to reasonable medical evaluation, treatment and prenatal care, that she retain the sole consent with respect to the clinical intervention and management of her pregnancy, that she relinquish her parental rights of the child upon the birth of the child and assist the commissioning couple in the birth certificate proceeding. The Statute also requires that if either or both of the commissioning couple is the biological parent of the child 'the couple agrees to accept custody of and assume full parental rights and responsibilities of the child immediately upon the child's birth regardless of any impairment of the child.'
Florida requires the commissioning couple and the treating physician to enter into a written agreement that provides for the disposition of the commissioning couple's eggs, sperm, and pre-embryos in the event of divorce, the death of a spouse, or any other unforeseen circumstance. In the event there is no written agreement, the Statute presumes that the egg or sperm shall remain under the control of the donor and the disposition of any pre-embryo shall reside jointly with the commissioning couple. In the event of death of one of the parties, the surviving member of the commissioning couple shall remain in control of any egg, sperm or pre-embryos. However, the Statute adds that 'a child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman's body shall not be eligible for a claim against the decedent's estate unless the child has been provided for by the decedent's will.'
Florida permits expenses for medical, legal, psychological, psychiatric care and 'reasonable living expenses' of the gestational carrier to be provided by the intending parents of the child. Although these amounts are not clearly defined, they must pass the 'reasonable' standard in court in order for the contract to be valid. Florida law, like most other states, clearly prohibits the buying and selling of children and although the child created herein is not biologically related to the party receiving the finances, this matter has never been tested in the courts. The medical, legal and other expenses for this type of arrangement are expensive. Parties should enter these agreements with the expectation of helping a family create a child and having reasonable expenses incurred in that process reimbursed and not with the expectation of how much money can be paid for their services. Fortunately most parties entering into these arrangements do so for all the right reasons and an excellent bond is formed between the two families that last long after the birth of the child.
Florida is one of only two states that has codified the birth certificate process enabling couples to establish their parental status of the child without a parternity/adoption process. The law's unique procedure permits the commissioning couple, within three days after the birth of the child, to petition for a birth certificate with their names as the biological parents of the child. This dispenses with the problems incurred in many states where the commissioning couple is actually forced to 'adopt' their own biological child in order to have their names put on the birth certificate. Gestational Carrier arrangements are an excellent alternative for couples who can create a viable embryo, or who, in combination with a egg or sperm donor can create a viable embryo. They are also more acceptable to more women wanting to assist couples in creating their own families in that the child they are carrying is not biologically related to them and thus they do not have some of the issues of loss associated in the giving away of a child created from their egg.
Contracts for Traditional Surrogacy
The requirements for Pre-planned Adoption Agreements, as traditional surrogacy contracts are referred to in Florida, are contained in Florida Statutes 63.212. Preplanned Adoption Agreements shall not 'effect the final transfer of custody of a child or final adoption of a child, without review and approval' by the Department of Health and Rehabilitative Services (DHRS) and the court and must comply with other provisions of Florida's adoption laws. Secondly the consent of the surrogate to place her child for adoption with the intending parents can be executed at the time of entering into the Preplanned Adoption Agreement but is not considered binding until seven days after the birth of the child. Her right to rescind within the seven day period following birth must clearly be made aware to her.
The Preplanned Adoption Agreement shall include, but need not be limited to the following:
1) That the surrogate (referred to in the statute as the voluntary mother) agree to become pregnant by the fertility technique specified in the agreement. This has been defined in the statute as 'artificial embryonation, artifical semination, whether in vivo or in vitro, egg donation, or embryo adoption.' The surrogate further agrees to bear the child and to terminate her parental rights to the child through a written consent executed at the time of entering the agreement with the conditions as stated above.
2) The surrogate agrees to obtain reasonable medical care during the pregnancy and to adhere to reasonable standards of prenatal care, abstain from drinking, smoking, consumption of excess caffeine, etc. These standards of care can be incorporated into the contract and in fact it is recommended that they be as well as the parties clearly discuss them before entering into the agreement to make sure everyone has the same expectations as to reasonable prenatal care.
3) The surrogate acknowledges that she is aware that she will assume parental rights and responsibilities for the child if the intended father and mother terminate the agreement before final transfer of custody is completed, or if a court determines that the intended parent who was to be the biologically-related parent is not the biological parent, or if the court does not approve the Preplanned Adoption Agreement.
4) The intended father, if also the biological father, acknowledges that he is aware that he will assume parental rights and responsibilities for the child if the agreement is terminated for any reason by any party before final transfer of custody is completed or if the Agreement is not approved by the court.
5) The intended parents must both acknowledge that they may not receive custody or parental rights of the child if the surrogate terminates the Agreement or if she rescinds her consent to the stepparent adoption within seven days after the birth of the child.
6) The intended parents may agree to pay all reasonable legal, medical, psychological, or psychiatric, and reasonable living expenses of the Surrogate.
7) The intended parents agree to accept custody of and assert full parental rights and responsibilities of the child immediately upon the child's birth, regardless of any impairments of the child.
8) The intended parents have the right to specify the blood and tissue type test to be performed to determine that at least one of them is the biological parent of the child.
9) The Agreement must state that it can be terminated at any time by any party.
A Preplanned Adoption Agreement may not include any provisions that would reduce the amount paid paid to the Surrogate if the child is stillborn or is born impaired or provide for a bonus payment for any reason, such as the delivery of a healthy child. It also prohibits the inclusion of any provision requiring the Surrogate to terminate the pregnancy.
These are the minimum requirements of the Statute. They obviously raise many questions which can further be elaborated in the Agreement, along with additional provisions agreed to by the parties. Separate legal representation is required for the Surrogate and intended parents. A paternity hearing is held after the birth of the child in the State where the child is born followed by a stepparent adoption in the state where the couple resides. If the adoption proceeding is filed in Florida, each Petition for Adoption filed pursuant to a preplanned adoption agreement must clearly state so in the petition and must attach a copy of the agreement to be reviewed by the court.
Concluding Comments
Assisted Reproductive Technology Service (ARTS) is a relatively new area of practice not only for the lawyers but also for many clinics and doctors. It raises many issues legally, medically and ethically. I suggest a thorough perusal of the many article on the TASC web site www.surrogacy.com that addresses these issues before one invests their finances, emotions and body in this procedure. Since many state have yet to recognize this procedure statutorily, or to accept these contracts, I recommend that at least one of the parties reside in a State that does, or that you use a clinic in a State that has favorable, clearly-defined laws on this subject to establish a nexus for use of that State's laws.
The most important element to a successful surrogate/gestational carrier case is having both parties enter into an enforceable agreement with a full and clear expectation as to everyone's role and responsibility, beginning with meeting or not meeting one another, disclosure of lab tests and psychological tests, number of attempted trials until a pregnancy is achieved, the care and contact of parties during the pregnancy, the parties' views on abortion and under what circumstances, if any, the parties would mutually agree to terminate a pregnancy, discuss and spell out provisions to resolve changes in circumstances, such as multiple births, or handling of disagreements as they arise, when and how the finances are to be handled and dispersed, whether all funds or what portion of the funds are to be held in trust, how custody of the child is to be resolved if circumstances such as death or divorce occurs prior to the birth of the child, and what are the parties' expectations for future contact.
These arrangements are wonderful and incredibly successful alternatives to many families with infertility problems, but these arrangements should not be entered into lightly, especially between family members or close friends where these issues are often not discussed. Through this web site, the resources are now available for you to become educated before you enter into such an arrangement.
NOTE: THE OBSERVATIONS ABOVE ARE RESTRICTED SOLELY TO THE STATE OF FLORIDA, AS OF THE DATE WRITTEN. THE LISTING IS BY NO MEANS EXHAUSTIVE, NOR TAILORED TO THE PARTICULAR FACTS OF ANY GIVEN SITUATION.
ANY REVIEWER OR POTENTIAL USER OF THIS INFORMATION IS ACTIVELY ENCOURAGED TO SEEK COMPETENT LEGAL COUNSEL WHO IS LICENSED TO PRACTICE LAW IN REVIEWER'S STATE OF RESIDENCE.
THE AUTHOR IS NOT QUALIFIED TO COMMENT ON THE LAW OF ANY STATE OTHER THAN FLORIDA. BY MAKING THIS INFORMATION AVAILABLE, THE AUTHOR IS NOT ESTABLISHING A LAWYER-CLIENT RELATIONSHIP WITH THE REVIEWER.
March 1997
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