The Law Surrounding Surrogacy in Florida: What You Should Know

Is Surrogacy Allowed in Florida?

Florida is considered to be a "surrogacy-friendly" state and not surprisingly is one of the most common states for surrogacy agreements. For the most part, Florida law is consistent and able to accommodate all surrogacy arrangements from gestational carriers to traditional and commercial arrangements. Nonetheless, there are certain areas in which Florida law may be overly restrictive and require careful planning to ensure that the surrogate is not unintentionally "parent" of a child she carries through assisted reproduction.
Florida Statute 63.213 addresses how a couple who participates in assisted reproduction such as IVF may obtain a prebirth order establishing parental status upon the child’s birth. This statute requires prebirth contingencies which may not be feasible or acceptable in all surrogacy cases. In some instances, we need prior attorney representation for the surrogate to qualify for the prebirth order.
First, the statute requires that the gestational carrier be either an employee of the intended parent or that the gestational surrogacy arrangement is altruistic. An altruistic surrogacy refers to a situation where no compensation is received for the surrogate’s carrying of the child. Altruistic surrogacy may also refer to cases where even if compensation or expenses are addressed by the intended parent(s) that they are strictly limited, such that the intended parent(s) do not incur a profit or gain from the surrogacy arrangement. Otherwise, pursuant to Fla. Stat. § 63.213(1)(a), the prebirth order will be considered void.
However, the statute does not create a hardline between reimbursing a surrogate for incidental out-of-pocket expenses and creating a commercial surrogacy arrangement. In one case , a judge ruled that out-of-pocket costs for the surrogate were acceptable when the surrogate could not have otherwise swallowed the medication prescribed by her fertility specialist. The Court explained, however, that this was not a "ruling on the legitimacy of surrogacy contracts in Florida." A future ruling may be needed to clarify the issue.
Second, parental prebirth orders are explicitly available to the intended mother if she is a genetic relative of the child or is the genetic mother of the child via artificial insemination under Fla. Stat. § 882.855. Often, intended mothers have not met these exact definitions. This is one of those areas where careful planning and analysis with the surrogate may be required to establish the intended mother’s eligibility before a child is born.
Third, the statute requires that all parties execute a gestational surrogacy contract, including the surrogate, and specifies detailed requirements regarding the language of the agreement. For everyone involved, it is vital that the agreement address the potential for multiple births, termination of the pregnancy and complications that may occur during the pregnancy. Of utmost importance is that the surrogate clearly relinquishes her parental rights and consents to the intended parents becoming the parents prior to the birth.
There are additional issues as well. If there are any complications with the embryo transfer and the surrogate miscarries, is she entitled to any compensation? If so to what extent? Further, if the surrogate experiences complications and is unable to work, is she compensated for that as well? These are just a few points to address as each case presents additional nuances and details.

Types of Surrogacy Allowed

There are two types of surrogacy: traditional and gestational. Traditionally, a surrogate’s egg is fertilized with the intended father’s sperm and the embryo is implanted in her womb. The surrogate is considered the genetic mother of the child and has genetic ties to the child. Gestational surrogacy, on the other hand, involves transferring the embryo of either the intended mother or an egg donor that the intended father’s sperm fertilizes to the surrogate’s uterus, but she has no genetic ties to the child. In Florida, only gestational surrogacy agreements are recognized.

Requirements for Surrogacy Contracts or Agreements

In addition to being of sound mind and over the age of 18, Florida law requires certain terms be included in a surrogacy agreement. The Florida statute specifically outlines the provisions that must be part of a surrogacy agreement signed in Florida. These include:
If a court determined that the surrogate did not have full knowledge of the risks involved, the intended parents will be responsible for any damages sustained by the surrogate as a result. Likewise, if it is determined that the surrogate failed to disclose all material information required by the statute, the surrogate is responsible for the damages caused.
While it is not a requirement that a surrogate and an intended parent have legal representation, each party will be identified by the law as fully understanding the risks and issues of surrogacy and voluntarily entering into such an agreement. If there are ever any questions about whether full informed consent was made, it will be very difficult to argue otherwise if the surrogacy agreement was signed without the help of an attorney.

Who Are the Parents in a Surrogacy?

Parental rights in the context of surrogacy arrangements in Florida often requires intended parents to undertake a legal process after a child is born through surrogacy to establish legal parentage. Intended parents who are genetically related to the child born through gestational surrogacy must often seek a judicial determination of parentage for both intended parents.
Additinally, in some states such as Florida which does not recognize post-birth orders of parentage in the case of a child conceived through traditional surrogacy (in which the surrogate is the biological mother of the child), intended parents might also be required to terminate the parental rights of the surrogate before the Florida Department of Children and Families can recognize the intended parents as the legal parents of their child.
Finally, where the intended parents are not biologically related to the child, they may simply file an application to be declared the presumptive legal parents of the adopted child presented for adoption by the surrogate.

When Surrogacy is Prohibited

There are some restrictions and prohibitions related to surrogacy in Florida. For example, while surrogacy agreements are enforceable in Florida, a surrogate should not be paid more than her reasonable hospital, agency and attorney’s fees for her participation. While it is legal for an intended parent to personally give a surrogate a gift or a bonus , a person should not "purchase" a surrogate. Offering a surrogate a certain amount of money plus incentives for prenatal medical care, dallying, taking bed rest, no alcohol, no smoking and the Shaklee weight-loss program is prohibited and unethical. Surrogates cannot be given "extras" beyond their basic compensation for the pregnancy.

Determining the Surrogacy Path

Before selecting a surrogate and moving forward with the process, intended parents will want to determine if they want to work with an agency or not, as the next steps will differ depending on this answer. If the intended parents opt to work with an agency, the agency will present them with a list of possible surrogates who fit their criteria. The criteria will be created together at the start of the process, and may include factors like medical history, the number of previous pregnancies and births, lifestyle and appearance. As the intended parents review the potential surrogates, they will each get the chance to meet face-to-face.
If the couple opts to find a surrogate independently, they can start by working with a lawyer to draft a surrogacy agreement that outlines the financial, emotional and legal details of the arrangement. They may also want to speak with a doctor and get a list of potential surrogates from a clinic. At this point, the intended parents will again review surrogates and agree on a candidate.
Once a surrogate has been selected, the next step is to establish a medical and psychological care plan. This involves a detailed medical exam for the surrogate, which may include bloodwork and an ultrasound, as well as a psychological evaluation. If the surrogate passes these evaluations, she will then begin developing a plan with her doctor for the upcoming pregnancy.
The following step is completing an agency contract. If the intended parents choose a private surrogacy, they will need a surrogacy contract as well. Before the agreement is signed, the intended parents may want to visit with a surrogate’s family to assess issues that may arise in the future — for example, it’s important to know if she or the family plans to have contact post-delivery.
After the agency contract is signed, an agency will place the intended parents with their chosen surrogate. This includes arranging the embryo transfer and ensuring that the surrogate has the needed resources and support for a successful and safe pregnancy.

Legal Pitfalls and Dangers

Surrogacy is an increasingly popular option for families seeking to expand beyond their biological capabilities. However, it’s imperative that potential parents are aware of the complexities and risks that could occur along the way. A contract is the most important tool in the surrogacy process, but because the state of Florida has not implemented any laws to protect those involved, there can be legal risks involved in each step of surrogacy.
In many areas of law, disputes arise over the interpretation of contracts, leading to long, expensive legal battles. In surrogacy, however , the disagreements typically revolve around the surrogate’s fitness to provide a child to the intended parents. If a surrogate is unfit to give birth after implantation — be it due to physical health issues or necessary actions that require extended bed rest — or if she legitimately decides she doesn’t want the child for any number of reasons, the intended parents may be the victims of a protracted, expensive and painful tug-of-war in court.
Obviously, the biggest preventable risk in surrogacy is an ill-conceived contract, or no contract at all. Surrogacy should not be entered into lightly. Without the guidance of an experienced lawyer, the risks of surrogacy could quickly lead to financial devastation.