Surrogacy laws in Florida, like surrogacy laws in every state in the U.S., are established and enforced by the state itself. Florida is a relatively surrogacy-friendly state, however, so whether you’re hoping to become a surrogate or a parent in Florida, you have options available to you.
Despite the fact that surrogacy is legal in Florida, you’ll still need to work with an experienced surrogacy professional to guide you through the complex surrogacy laws in the United States and to ensure that your process is completed legally.
If you have any questions about surrogacy law in FL, or if you have any legal issues with surrogacy, contact a surrogacy attorney near you. The following article lists some of the most common questions about FL surrogacy laws and their answers, but is not meant to be used as legal advice, so you should always consult with an attorney.
“Is Surrogacy Legal in Florida?”
Yes. Although the media likes to hype up arguments about whether surrogacy should be legal, the over-exaggerated rules and regulations of surrogacy in Florida don’t mean that families can’t choose this family building option legally and safely.
Sensationalist news about “illegal surrogacy” has worried potential parents about the legality of surrogacy in Florida. But not only is surrogacy legal in Florida, it’s a carefully regulated and ethical way to expand your family. Surrogacy is a unique way for people to come together with a common goal: to bring a baby into the world!
“Does Florida Allow Traditional Surrogacy?”
Yes, although it carries more legal and ethical risks than gestational surrogacy. Governed by Fla. Stat. §63.213, traditional surrogacy laws in Florida are more like adoption laws than anything else. Traditional surrogacy agreements in Florida are even legally referred to as “preplanned adoption agreements,” because the surrogate in traditional surrogacy is the biological mother of the child she carries.
This means that the surrogate maintains legal parental rights over the child, and although she and the intended parents enter into a pre-planned adoption agreement that seeks to terminate her parental rights, she may revoke her consent at any point up until 48 hours after giving birth. If the preplanned adoption agreement is terminated at any point by any party, or if the court does not approve the adoption agreement, the surrogate will assume legal parental rights and responsibilities for the child from that point.
Again, traditional surrogacy functions more like adoption under Florida surrogacy laws, so if you choose this less-common method, you should familiarize yourself with the legal processes associated with adoption.
Gestational surrogacy laws in Florida, meanwhile, are very clear and straightforward for both the gestational surrogates and intended parents. This type of surrogacy is legal under Fla. Stat. Chapter §742 and far more common in Florida.
“Is Compensated Surrogacy Legal in Florida?”
Yes. Commercial surrogacy is legal in Florida and is regulated by surrogate laws in Florida. It’s important — legally and ethically — to understand that intended parents are not paying a gestational carrier for a baby. Instead, surrogacy compensation goes towards the surrogate’s lost wages, travel expenses, time, the medical risks she undertakes throughout the process and more. Compensation for surrogates will also be solidified within your surrogacy contract.
“Is Same-Sex Surrogacy Legal in Florida?”
Yes. When same-sex marriage was officially legalized by the U.S. Supreme Court in 2015, it also guaranteed access to family-building options like adoption and surrogacy for same-sex couples. The surrogacy process for same-sex couples is generally identical to the process for opposite-sex couples, with the exception of potentially working with a sperm or egg donor for the in vitro fertilization process. You can learn more about LGBT surrogacy in Florida here.
“What’s a FL Surrogacy Contract?”
The Florida surrogacy legal contract is created between the intended parents and a gestational surrogate (and her spouse, if she’s married, to acknowledge that he has no parental rights). Your gestational surrogacy contract must be created through your individual attorneys after you’ve been matched together, but before you begin any of the medical processes of surrogacy.
Surrogacy contracts create a roadmap for establishing the legal parental rights of the intended parents, compensation for the surrogate, social roles during the process and more. Fla. Stat. §742.15 requires that the contract must at least state that the surrogate: (a) is the sole source of consent in regards to clinical intervention and management of the pregnancy; (b) will submit to reasonable medical evaluation and treatment and will agree to follow all medical instructions; (c) will relinquish all legal rights to the child after he/she is born; (d) and will assume legal rights and parental responsibilities for the child born to her if neither intended parent is genetically related to the child. The contract must also state that the intended parents agree to accept parental rights over the child regardless of any impairment of the baby.
When everyone has agreed to a final version of the contract, you can move on to the medical steps of surrogacy.
“How Do Intended Parents Establish Themselves as the Legal Parents in FL?”
Pre-birth orders are permitted and recommended in Florida, although not legally required. For a pre-birth order, the intended parents and their attorney would file a petition for affirmation of parental status with the court during the second trimester. This will make it easier for the intended parents to be at the hospital for the birth and to amend the birth certificate with the names of the intended parents later on. A pre-birth order does not legally establish legal parental rights, but it’s a helpful step toward that result and is generally recommended.
Florida surrogacy legislation Fla. Stat. §742.16 requires that a petition for affirmation of parental rights be filed by the intended parents within three days after the child’s birth. With court approval, this will secure legal parental rights for the intended parents.
As mentioned above, in traditional surrogacy where the child is not genetically related to either intended parent and/or the child is genetically related to the surrogate, intended parents will need to complete an adoption after the child is born in accordance with Fla. Stat. §63.213. In these situations, the surrogate’s legal parental rights to the child must be terminated through the adoption process before the intended parents may assume those rights. This is an additional step in the Florida surrogacy legal process that is not required for gestational surrogacy.
Contact a Florida surrogacy professional to learn more about these laws on surrogacy in Florida, and to receive answers to your questions about any Florida surrogacy laws that could influence your own surrogacy journey as an intended parent or surrogate.