What are the Rules Regarding Gestational Surrogacy in Florida?

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Gestational surrogacy is becoming a relatively popular and common way to build a family in Florida. With the scientific advancements, Florida has taken the legal steps necessary to carefully regulate the gestational surrogacy process. These laws not only attempt to provide security for the resulting child but, the intended parents, and surrogate involved. The laws governing gestational surrogacy are plentiful and both parents and surrogate will need to seek the advice of an experienced child custody attorney to ensure they are protected and following proper protocol under Florida statute.

Gestational surrogacy, broadly defined, is the process of implanting an embryo, into a surrogate carrier, who is unrelated to the resulting child. The embryo may be formed using donated genetic material or may be the biological make up of the intended parents, also known as the commissioning couple. This form of surrogacy is regulated under Florida Statute Chapter 742. Prior to entertaining the idea of surrogacy, it is important to ensure you meet Florida’s requirements for gestational surrogacy. The only requirement of the gestational surrogate is that they meet the capacity requirement under Florida law, being 18 years or older. In contrast, the commissioning couple must be 18 years or older, be married, and have a diagnosis from a physician providing medical reasoning for the need of a surrogate. These medical conditions include: the wife cannot physically carry a child to term, or a pregnancy will cause a risk of harm to the mother or child. After meeting these qualifications, you will then proceed to enter into a surrogacy contract.

A surrogacy contract must be entered into between the surrogate and couple, prior to insemination of the embryo. If the surrogate is married, the spouse must also be a party to the agreement to waive their parental rights to the resulting child. These contracts are the framework of both the personal and business relationship between the parties and the terms are crucial to your protection as well as the protection of the resulting child. Florida Statute requires these contracts include: agreements that the surrogate be the sole source of consent with regard to the pregnancy; the surrogate attend reasonable medical appointments, adhering to medical instruction; the surrogate must relinquish any parental rights statutorily provided to her upon birth of the child; the couple must accept custody of the child immediately after birth, however, the couple will not assume rights and the surrogate will retain parental rights upon determination that the child is instead related to the surrogate and not the parents. Although not required, the contract may also provide for the reasonable compensation of the surrogate’s medical, living, legal, psychological, and psychiatric needs. Other terms, or more detailed descriptions may be provided for in the contract, however, each item must be strictly discussed and reviewed with your lawyer in order to ensure the legality of the provisions and enforceability. Once the contract is signed by each party, the medical process may begin.

The next step in the gestational surrogacy process is to petition the court for affirmation of parental rights. This is filed by the couple, and within 3 days of the birth of the child. A court will set a hearing on the matter, and the couple is responsible for serving notice to the surrogate, physician, and any party claiming parental rights. At the hearing, the court will determine the validity of the surrogacy contract, the biological connection between the couple and the child and order determining the legal parents of the child.  Within 30 days of this order, the clerk will prepare an order for the state registrar of vital statistics and require the Department of Health to issue a new birth certificate for the child, placing the couple as the parents of the child.

Although, the law provides for a rather straightforward process, the critical point of these gestational surrogacy laws surround the surrogacy contract. Therefore, it is imperative to be properly informed and represented during this process. Contact an experienced attorney to discuss your eligibility for gestational surrogacy, and the necessary steps you should take in order to protect yourself and your future family.

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