With surrogacy increasing in popularity all over America, but no federal regulation is in place, it is imperative to understand the applicable laws in Florida regarding traditional surrogacy procedures. An experienced child custody attorney will be able to explain your rights regarding the process as well as the necessary steps you must take to protect you and your child.
The term traditional surrogacy is used in cases when the surrogate carrier is genetically related to the child, using her own egg with donor sperm or intended father’s, but she intends to relinquish her parental rights upon birth of the child. Traditional surrogacy laws in Florida are not as straight forward as the gestational surrogacy procedure. Traditional surrogacy is instead more closely related to the adoption procedure in Florida. For instance, instead of completing a surrogacy contract, the parties will enter a preplanned adoption agreement. Because of the biological connection between the surrogate mother and the child, the legal rights and presumptions are much more difficult to overcome and are highly protected.
If engaging in a traditional surrogacy procedure in Florida, it is important to take contractual steps prior to artificial insemination by engaging in a preplanned adoption agreement and ensure the parties meet statutory requirements. First, if using donor material, it is crucial to ensure the donor of the genetic material has contractually agreed to relinquish all parental rights to any child that may result from their genetic donation. The next step would be for both husband and wife, to consent in writing to the use of donated material or artificial insemination declaring their intent to parent the child. It is also required that the couple seeking to parent the child be legally married. These steps will create an irrebuttable presumption of parentage by traditional surrogacy under Florida Statute 742.11. After satisfying these initial steps, the parties must enter a preplanned adoption contract.
The regulations for a preplanned adoption agreement are found in Florida Statute 63.213. These agreements are entered into between the surrogate mother, and commissioning couple. Statute requires each agreement to at minimum address: the rights of the surrogate mother; the rights of the intended parents and specifically the intended father; the requirement of the surrogate to attend medical treatments and appointments; the payment of reasonable living, legal, medical, psychological, inconvenience expenses related to the pregnancy; and that the agreement may be terminated by either party at any time. The specific rights given to the surrogate include her voluntary agreement to become pregnant using medical assistance and terminate her parental rights upon birth of the child. However, the mother is provided a 48 hour window after the birth of the child to revoke her consent. The surrogate also is required to assume parental rights if the couple terminates the agreement, the agreement is invalidated, or the child is not genetically related to the parents. The commissioning couple is required to acknowledge the surrogate’s right to withdraw consent to adoption of the child, and also accept responsibility for the child upon birth and relinquishment by the surrogate mother. Specifically relating to the intended father, if he is also the biological father of the child, he must assume parental rights to the child unless the preplanned adoption agreement is invalidated. The agreement may not require a termination of the pregnancy; remove payments or parental agreement due to a child’s medical impairments; or allow for payments to third parties other than medical professionals and attorneys in relation to the procedures and contracts involved. For this agreement, each party must have their own legal representation.
Although this preplanned adoption is similar in nature to a surrogacy contract, the main difference includes the ability of the surrogate mother to retain her parental rights over the child up until 48 hours after the birth of the child. This is where surrogacy law turns into adoption. Even if the mother does not revoke her consent and relinquishes her rights to the child, the parents must still proceed with a formal adoption of the child, generally this occurs through step parent adoption. However, the preplanned adoption contract, testimony of the surrogate and doctors involved allow for a smoother adoption process.
Although Florida has provided a create deal of legislation regarding traditional surrogacy, in order to properly protect your family, it is prudent to seek the advice or representation of a knowledgeable lawyer. Your attorney will be able to alleviate the stresses of the legal process during this time, and allow you to enjoy and focus on the important process of building your family. Contact us today to discuss your rights regarding a traditional surrogacy process.
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