The following are the relevant Florida statutes that deal with third party reproductive law.
Florida Statute 742.13 - Definitions
Florida Statute 742.14 - Donation of Eggs, Sperm, or Pre-embryos
- “Assisted reproductive technology” means those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.
- “Commissioning couple” means the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.
- “Egg” means the unfertilized female reproductive cell.
- “Fertilization” means the initial union of an egg and sperm.
- “Gestational surrogate” means a woman who contracts to become pregnant by means of assisted reproductive technology without the use of an egg from her body.
- “Gestational surrogacy” means a state that results from a process in which a commissioning couple’s eggs or sperm, or both, are mixed in vitro and the resulting preembryo is implanted within another woman’s body.
- “Gestational surrogacy contract” means a written agreement between the gestational surrogate and the commissioning couple.
- “Gamete intrafallopian transfer” means the direct transfer of eggs and sperm into the fallopian tube prior to fertilization.
- “Implantation” means the event that occurs when a fertilized egg adheres to the uterine wall for nourishment.
- “In vitro” refers to a laboratory procedure performed in an artificial environment outside a woman’s body.
- “In vitro fertilization embryo transfer” means the transfer of an in vitro fertilized preembryo into a woman’s uterus.
- “Preembryo” means the product of fertilization of an egg by a sperm until the appearance of the embryonic axis.
- “Pronuclear stage transfer” or “zygote intrafallopian transfer” means the transfer of an in vitro fertilized preembryo into the fallopian tube before cell division takes place.
- “Sperm” means the male reproductive cell.
- “Tubal embryo transfer” means the transfer of a dividing, in vitro fertilized preembryo into the fallopian tube.
Florida Statute 742.15 - Gestational Surrogacy Contract
The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a Preplanned Adoption Agreement under s. 63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.
Florida Statute 742.16 - Affirmation of Parental Status
- Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate. A contract for gestational surrogacy shall not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple are legally married and are both 18 years of age or older.
- The commissioning couple shall enter into a contract with a gestational surrogate only when, within reasonable medical certainty as determined by a physician licensed under chapter 458 or chapter 459:
a- The commissioning mother cannot physically gestate a pregnancy to term.
b- The gestation will cause a risk to the physical health of the commissioning mother; or
b- The gestation will cause a risk to the health of the fetus.
- A gestational surrogacy contract must include the following provisions:
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.
- 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, intrapartal, and postpartal periods.
Florida Statute 742.17 - Disposition of Eggs, Sperm, or Pre-embryos
Expedited affirmation of parental status for gestational surrogacy.
- Within 3 days after the birth of a child delivered of a gestational surrogate, the commissioning couple shall petition a court of competent jurisdiction for an expedited affirmation of parental status.
- After the petition is filed, the court shall fix a time and place for hearing the petition, which may be immediately after the filing of the petition. Notice of hearing shall be given as prescribed by the rules of civil procedure, and service of process shall be made as specified by law for civil actions.
- Upon a showing by the commissioning couple or the child or the gestational surrogate that privacy rights may be endangered, the court may order the names of the commissioning couple or the child or the gestational surrogate, or any combination thereof, to be deleted from the notice of hearing and from the copy of the petition attached thereto, provided the substantive rights of any person will not thereby be affected.
- Notice of the hearing shall be given by the commissioning couple to:
a- The gestational surrogate.
b- The treating physician of the assisted reproductive technology program.
c- Any party claiming paternity.
- All hearings held in proceedings under this section shall be held in closed court without admittance of any person other than essential officers of the court, the parties, witnesses, and any persons who have received notice of the hearing.
- The commissioning couple or their legal representative shall appear at the hearing on the petition. At the conclusion of the hearing, after the court has determined that a binding and enforceable gestational surrogacy contract has been executed pursuant to s. 742.15 and that at least one member of the commissioning couple is the genetic parent of the child, the court shall enter an order stating that the commissioning couple are the legal parents of the child.
- When at least one member of the commissioning couple is the genetic parent of the child, the commissioning couple shall be presumed to be the natural parents of the child.
- Within 30 days after entry of the order, the clerk of the court shall prepare a certified statement of the order for the state registrar of vital statistics on a form provided by the registrar. The court shall thereupon enter an order requiring the Department of Health to issue a new birth certificate naming the commissioning couple as parents and requiring the department to seal the original birth certificate.
- All papers and records pertaining to the affirmation of parental status, including the original birth certificate, are confidential and exempt from the provisions of s. 119.07(1) and subject to inspection only upon order of the court. The court files, records, and papers shall be indexed only in the name of the petitioner, and the name of the child shall not be noted on any docket, index, or other record outside the court file.
Florida Statute 63.213 - Preplanned Adoption Agreement
A commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple’s eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.
- Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm.
- Absent a written agreement, decision making authority regarding the disposition of preembryos shall reside jointly with the commissioning couple.
- Absent a written agreement, in the case of the death of one member of the commissioning couple, any eggs, sperm, or preembryos shall remain under the control of the surviving member of the commissioning couple.
- A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.
1. Individuals may enter into a preplanned adoption arrangement as specified in this section, but such arrangement may not in any way:
- Effect final transfer of custody of a Child or final adoption of a Child without review and approval of the court and without compliance with other applicable provisions of law.
- Constitute consent of a mother to place her biological Child for adoption until 48 hours after the birth and unless the court making the custody determination or approving the adoption determines that the mother was aware of her right to rescind within the 48-hour period after the birth of the Child but chose not to rescind such consent. The Volunteer Mother’s right to rescind her consent in a preplanned adoption applies only when the Child is genetically related to her.
2. A Preplanned Adoption Agreement must include, but need not be limited to, the following terms:
- That the volunteer mother agrees to become pregnant by the fertility technique specified in the agreement, to bear the Child, and to terminate any parental rights and responsibilities to the Child she might have through a written consent executed at the same time as the Preplanned Adoption Agreement, subject to a right of rescission by the volunteer mother any time within 48 hours after the birth of the Child, if the volunteer mother is genetically related to the Child.
- That the volunteer mother agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.
- That the volunteer mother acknowledges that she is aware that she will assume parental rights and responsibilities for the Child born to her as otherwise provided by law for a mother if the intended father and intended mother terminate the agreement before final transfer of custody is completed, if a court determines that a parent clearly specified by the Preplanned Adoption Agreement to be the biological parent is not the biological parent, or if the preplanned adoption is not approved by the court pursuant to the Florida Adoption Act.
- That an intended father who is also the biological father acknowledges that he is aware that he will assume parental rights and responsibilities for the Child as otherwise provided by law for a father if the agreement is terminated for any reason by any party before final transfer of custody is completed or if the planned adoption is not approved by the court pursuant to the Florida Adoption Act.
- That the intended father and intended mother acknowledge that they may not receive custody or the parental rights under the agreement if the volunteer mother terminates the agreement or if the volunteer mother rescinds her consent to place her Child for adoption within 48 hours after birth of the Child, if the volunteer mother is genetically related to the Child.
- That the intended father and intended mother may agree to pay all reasonable legal, medical, psychological, or psychiatric expenses of the volunteer mother related to the preplanned adoption arrangement and may agree to pay the reasonable living expenses and wages lost due to the pregnancy and birth of the volunteer mother and reasonable compensation for inconvenience, discomfort, and medical risk. No other compensation, whether in cash or in kind, shall be made pursuant to a preplanned adoption arrangement.
- That the intended father and intended mother agree to accept custody of and to assert full parental rights and responsibilities for the Child immediately upon the Child's birth, regardless of any impairment to the Child.
- That the intended father and intended mother shall have the right to specify the blood and tissue typing tests to be performed if the agreement specifies that at least one of them is intended to be the biological parent of the Child.
i. That the agreement may be terminated at any time by any of the parties.
3. A Preplanned Adoption Agreement shall not contain any provision:
- To reduce any amount paid to the volunteer mother if the Child is stillborn or is born alive but impaired, or to provide for the payment of a supplement or bonus for any reason.
- Requiring the termination of the volunteer mother's pregnancy.
4. An attorney who represents an intended father and intended mother or any other attorney with whom that attorney is associated shall not represent simultaneously a female who is or proposes to be a volunteer mother in any matter relating to a Preplanned Adoption Agreement or preplanned adoption arrangement.
- Payment to agents, finders, and intermediaries, including attorneys and physicians, as a finder's fee for finding volunteer mothers or matching a volunteer mother and intended father and intended mother is prohibited. Doctors, psychologists, attorneys, and other professionals may receive reasonable compensation for their professional services, such as providing medical services and procedures, legal advice in structuring and negotiating a Preplanned Adoption Agreement, or counseling.