Surrogacy Laws in Florida
- Is Florida a surrogate friendly state: Yes! Florida is a surrogacy friendly state as Florida has a legal framework within Florida statutes which governs surrogacy so that the rights of the intended parent(s) and surrogate are protected and a clear path is established to finalize parental rights in favor of the intended parents. Anyone can legally pursue surrogacy in Florida. The Intended parents can be married, unmarried, same sex, or use any form of donated genetic material including donated embryos.
- Can Parent(s) obtain a birth order without an adoption: Married heterosexual or same sex couples using at least one of their genetics (the sperm or egg of one of the intended parents), can proceed under Florida’s surrogacy statute that is not within our adoption statute. For unmarried intended parents, single intended parents, or intended parents using a donated embryo, intended parents proceed under Florida’s pre-planned adoption statute that is found within Florida’s adoption statute but is not a traditional adoption.
- Does there need to be a genetic connection between Parent(s) and Child: No. Intended parents can proceed with donor egg, donor sperm, or donated embryos.
Summary of Florida Surrogacy Law
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. The Florida surrogacy laws are also clear that the surrogate terminates her parental rights to the child(ren) born to her and she cannot change her mind to this termination unless the child(ren) ends up being her genetic child(ren) (i.e. she had intercourse at a time she was prohibited from doing so). The Florida surrogacy laws are also clear in that the intended parent(s) must assume parental rights to the child(ren) regardless of any impairment.
One of the first determinations is whether the parties have the appropriate connections to Florida to utilize Florida surrogacy laws. Another important consideration is the Florida surrogacy laws differ depending on the facts of the case. One set of Florida law governs surrogacy for married couples using the genetics of at least one member of the intended parents and another set of Florida laws govern surrogacy contracts for single parents, unmarried couples, or parents using donated embryos. Regardless of the laws utilized, surrogacy is possible for everyone in Florida. Another consideration is that in Florida, a doctor must determine that surrogacy is medically necessary either because 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.
Once the child(ren) is born in Florida via surrogacy, Florida law requires the intended parent(s), within 3 days of the birth, to petition the selected Florida court for a post-birth court order directing the Florida Department of Vial Statistics to issue a birth certificate naming the intended parent(s) as the sole legal parent(s) of the child(ren) and terminating the parental rights of the surrogate. Once the final court order is issued following the birth of the child(ren), the Florida birth certificate in the name(s) of the intended parent(s) is provided shortly thereafter to the intended parent(s). The birth certificate will allow the intended parent(s) to obtain a social security number and U.S. passport for the child(ren).
It is important that the parties’ surrogacy contract (entered into before the pregnancy), properly addressed certain issues relating to the Florida court proceedings, which includes, but is not limited to, the termination of parental rights of the parties, designating Florida law (if applicable) to the court proceedings. It is also important that the intended parent(s) reproductive attorney obtained the required supporting documents that need to be filed with the court. During the contract stage of the surrogacy process, the intended parent(s) have a reproductive attorney representing the intended parent(s), and the surrogate has her own separate reproductive attorney, which attorney is paid for by the intended parent(s).
While the court order procedure to place the intended parent(s) on the birth certificate is obtained in Florida after the child(ren) is/are born, it may be beneficial to discuss with your reproductive attorney the option of additionally obtaining a pre-birth order on or around the second trimester of pregnancy to provide to the hospital in advance of the delivery to ensure for a smooth delivery process. The post birth court order is what allows a new birth certificate to be issued removing any reference to the gestational surrogate and naming the intended parent(s) as the sole legal parent(s) of the child(ren). All hearings in Florida are held in closed court and the pleadings and information filed with the court is confidential. The intended parent(s) and gestational surrogate and her spouse/partner (if any) 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 or the applicable judge involved in the matter.