For couples who cannot naturally conceive a child, surrogacy is an option that is available to them if they want to start a family. “Surrogacy” is defined as a woman (the “surrogate mother”) becoming pregnant and giving birth to a baby in order to give it to someone who cannot have children.
Surrogacy is legal in Florida and it has specific laws governing how it’s done. First off, there must be a “commissioning couple” (i.e., the couple who wants the child, otherwise referred to as the “intended parents”), and they both must be over the age of 18 and legally married to each other. The commissioning couple must find a surrogate mother and decide which type of surrogacy they wish to pursue:
In this type of surrogacy, the surrogate mother does not donate her ovum to the pregnancy. This means that her pregnancy is achieved through in-vitro fertilization, which is when the embryo is created outside of the surrogate mother’s body and then placed into her uterus. This is achieved with either the intended father’s sperm with a donor egg (not the surrogate mother’s egg); the intended mother’s egg with donor sperm; or both intended parents’ sperm and egg. Since the surrogate is not biologically related to the embryo, the commissioning couple assumes immediate physical and legal custody of the child upon birth.
In this type of surrogacy, the intended parents use the egg of the surrogate mother, and they fertilize it with either the intended father’s sperm or other donor sperm. Florida law requires the surrogate mother to surrender her parental rights in writing prior to giving birth. However, because of the fact that she is genetically connected to the child, she has 48 hours following the child’s birth to change her mind. If she does, the intended parents must file a separate legal proceeding to determine custody, child support, and related matters. Traditional surrogacy has fallen out of favor because, if the surrogate mother does change her mind, the process can be costly, as well as emotionally taxing. Currently, traditional surrogacy makes up only about 5% of all surrogacies in Florida.
Once the commissioning couple has found a surrogate mother and chosen which type of surrogacy they wish to pursue, they must enter into a written contract with the surrogate mother.
For gestational surrogacy, the contract must include the following findings by a licensed physician:
- The commissioning mother cannot physically carry a pregnancy to term;
- The pregnancy will cause a risk to the physical health of the commissioning mother, or
- The pregnancy will cause a risk to the health of the fetus.
The contract must also include the following terms:
- The commissioning couple agrees that the surrogate shall be the sole source of consent with respect to clinical intervention and management of the pregnancy;
- The gestational surrogate agrees to submit to reasonable medical evaluation and treatment, and to adhere to reasonable medical instructions about her prenatal health;
- The gestational surrogate agrees to relinquish any parental rights upon the child’s birth and to proceed with the judicial proceedings (this is the consent to surrender her parental rights mentioned above);
- 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, and
- 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.
As part of the contract, the commissioning couple may agree to pay only reasonable living, legal, medical, psychological, and psychiatric expenses of the gestational surrogate that are directly related to prenatal, intra-partal, and post-partal periods.