Who Has Rights To a Child Born Through Surrogacy?

A parent holds their small child's hands and helps them walk on the beach

With the rather new development of surrogacy and artificial insemination, the law is slowly progressing to keep up with the constantly progressing scientific advancements. However, gaining rights to your child may prove to be more difficult than you would assume. Therefore, it is important to consult with an Orlando Child Custody Attorney to establish your legal rights to a child you intentionally brought into this world.

There are two types of surrogacy, traditional and gestational. Gestational refers to the process where a couple’s egg and sperm are mixed invitro, creating an embryo that is then implanted into a third party woman’s body. 742.13 While a traditional surrogacy, the woman’s own eggs are used with donor sperm. Therefore, the key difference is in a gestational surrogacy there is no genetic link between the baby and the carrier.

In traditional surrogacy, a child born during the time of an intact marriage, has an irrebuttable presumption to be the child of the husband and wife. 742.11 Further, in a traditional surrogacy where there has been a donation of eggs or embryos, the child will be presumed to be the child of the woman carrying the child and her husband, as long as the parties have contest in writing to the use of the donated eggs or embryos. 742.11 If you are using donated eggs, sperm or embryos it is important to have documents from the donors, relinquishing their rights to the resulting children. 742.14 Therefore, in a traditional surrogacy arrangement is it important to document your exact scientific process and consult and attorney to document your consent in order to protect your parental rights.

In a gestational surrogacy arrangement, there are many more steps that a couple must follow. Florida restricts gestational surrogacy to certain parameters. Therefore, prior to seeking out a surrogate you must fall within one of these three categories. The couple must have been deemed within reasonable medical certainty that “the commissioning mother cannot physically gestate a pregnancy to term; the gestation will cause a risk to the physical health of the commissioning mother; or the gestation will cause a risk to the health of the fetus.” 742.15 After medical confirmation, but prior to insemination the couple and the surrogate must enter into a gestational surrogacy contract. This contract must include:

“(a) The commissioning couple agrees that the gestational surrogate shall be the sole source of consent with respect to clinical intervention and management of the pregnancy.

(b) The gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.

(c) Except as provided in paragraph (e), the gestational surrogate agrees to relinquish any parental rights upon the child’s birth and to proceed with the judicial proceedings prescribed under s. 742.16.

(d) Except as provided in paragraph (e), the commissioning couple agrees to accept custody of and to assume full parental rights and responsibilities for the child immediately upon the child’s birth, regardless of any impairment of the child.

(e) The gestational surrogate agrees to assume parental rights and responsibilities for the child born to her if it is determined that neither member of the commissioning couple is the genetic parent of the child.”

Finally, the contract may include reasonable payment to the surrogate mother from the couple to cover “reasonable living, legal, medical, psychological and psychiatric expenses… directly related to prenatal, intrapartal, and postpartum periods.” 742.15

After the birth of the child born through gestational surrogacy, the couple will petition the court to affirm their parental status within three days. The court will have a hearing, giving notice to the surrogate, physician, and parties claiming parental status. The court will determine the validity of the gestational surrogacy contract and that at least one of the commissioning parents has biological ties to the child. After these findings the court will enter an order stating the commissioning parents are the legal parents of the child. Within 30 days the court will order the Department of Health to issue a new birth certificate for the child. 742.16

If you and your partner are considering the option of surrogacy, contact an Orlando Child Custody Attorney today to assure your rights to your child are protected. This can become an intricate and complicated process and the employment of an experienced Orlando Child Custody Attorney will be invaluable.

Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.

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