GESTATIONAL SURROGACY AGREEMENTS

Gestational Surrogacy Agreements are legal in Florida. The applicable statute specifies the provisions which must be included in order for the contract to be enforceable. The contract will only be enforceable if the commissioning couple is over the age of 18, married to each other, and a physician licensed in Florida has determined that, “within reasonable medical certainty”:

1) the commissioning mother cannot physically gestate a pregnancy to term.
2) the gestation will cause a great risk to the physical health of the commissioning mother.
3) the gestation will cause a risk to the health of the fetus. 

The statute further requires the contract to include that the surrogate agrees to submit to reasonable medical evaluation, treatment and prenatal care, that she retain the sole consent with respect to the clinical intervention and management of her pregnancy, that she relinquish her parental rights of the child upon the birth of the child, and assist the commissioning couple in the birth certificate proceeding. The statute also requires that if either or both of the commissioning couple is the biological parent of the child, the couple agrees to accept custody of, and assume full parental rights and responsibilities of, the child immediately upon the child's birth regardless of any impairment of the child.

Florida requires the commissioning couple and the treating physician to enter into a written agreement that provides for the disposition of the commissioning couple's eggs, sperm, and pre-embryos in the event of divorce, the death of a spouse, or any other unforeseen circumstance. In the event there is no written agreement, the statute presumes that the egg or sperm shall remain under the control of the donor and the disposition of any pre-embryo shall reside jointly with the commissioning couple. In the event of death of one of the parties, the surviving member of the commissioning couple shall remain in control of any egg, sperm or pre-embryos. However, the statute adds that a child conceived from the eggs or sperm of a person, or persons, who died before the transfer of their eggs, sperm, or pre-embryos 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.

Florida permits expenses for medical, legal, psychological, psychiatric care, and reasonable living expenses of the gestational carrier to be provided by the intending parents of the child. Although these amounts are not clearly defined, they must be “reasonable” in order for the contract to be valid. The medical, legal, and other expenses for this type of arrangement are expensive. Parties should enter into these agreements with the expectation of helping a family create a child and having reasonable expenses incurred in that process reimbursed. They should not enter into this type of agreement with the expectation of how much money they can be paid for their services. Fortunately, most parties entering into these arrangements do so for all the right reasons and an excellent bond is formed between the two families that often lasts long after the birth of the child.

Florida has a statute in place that governs the birth certificate process.  It enables couples to establish their parental status of the child without an adoption process. The law's unique procedure permits the commissioning couple, within three days after the birth of the child, to petition the court for a birth certificate with their names as the biological parents of the child. This dispenses with the problems incurred in many states where the commissioning couple is actually forced to “adopt” their own biological child in order to have their names put on the birth certificate. Gestational carrier arrangements are an excellent alternative for couples who can create a viable embryo, or who, in combination with an egg or sperm donor, can create a viable embryo. They are also more acceptable to more women wanting to assist couples in creating their own families in that the child they are carrying is not biologically related to them and thus they do not have some of the issues of loss associated in giving away a child created from their egg.

AFFIRMATION OF PARENTAL STATUS

Within 3 days after the birth of a child delivered pursuant to a gestational surrogacy agreement, the commissioning couple shall petition a court for an expedited affirmation of parental status.  The commissioning couple does not have to be present at this hearing.  The attorney will ask the court to affirm the gestational surrogacy agreement and ask the court to order the Department of Health to change the name on the birth certificate to reflect the commissioning parents.   At the conclusion of the hearing, after the court has determined that a binding and enforceable gestational surrogacy contract has been executed and that at least one member of the commissioning couple is the genetic parent of the child, the court will 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 is presumed to be the natural parents of the child.

PREPLANNED ADOPTION AGREEMENTS

For unmarried couples and individuals, a Preplanned Adoption Agreement is the proper method of proceeding.  The law pertaining to Preplanned Adoption Agreements are governed by Florida Statue § 63.213.  Preplanned Adoption Agreements can be used in either a “traditional surrogacy” (where the surrogate becomes pregnant with the use of her own egg) or a “gestational surrogacy” (where the surrogate becomes pregnant without the use of her own egg). In a Preplanned Adoption Agreement, a “voluntary mother” agrees to carry the intended parent(s) child.  Court approval is required for the adoption.  In 2012, an important amendment to the statute was made which allows the birth mother to rescind her consent within 48 hours after the birth of the child only if she is genetically related to the child.  Prior to 2012, the statute allowed the birth mother to rescind her consent within 48 hours even if she was not biologically related to the child.  In addition, under the Preplanned Adoption Agreement, the intended parents do not have to be biologically related to the child.

Although this area of law continues to evolve at a rapid pace, parties entering into Preplanned Adoption Agreements must have a clear and mutually agreed upon understanding of the process from start to finish. Everyone's role and responsibility must be clearly laid out and expressed in writing to have an enforceable agreement and to avoid potential pitfalls and problems.

SAME SEX SURROGACY

The definition of family is rapidly changing in the United States and throughout the world.  Alexia is proud to work with LGBT couples and individuals who are starting a family. Fortunately, same sex married couples can now use Florida's Gestational Surrogacy Statute now that Florida recognizes same sex marriages. Previously, same sex couples would have to proceed under the Preplanned Adoption Statute, which was more timely and costly.  Further, there were additional proceedings required for the non-biological partner to obtain parental rights for the child that involved a process called a second parent adoption. A second parent adoption is a legal proceeding which allows a same-sex partner to petition the court to adopt her or his partner’s biological or adoptive child without terminating the first parent’s legal status as a parent.

Second parent adoptions provide protection for children of same-sex couples by giving the child the legal security of having two legal parents.  Having a legal relationship between parent and child affects inheritance rights, social security, retirement and death benefits, the right of a child to bring a lawsuit, such as a wrongful death action, and many other benefits such as health and life insurance. A second parent adoption also protects the rights of the child by ensuring that he will continue to receive financial support and a relationship with the second parent if the parents separate.  Same sex unmarried couples will still have to go through a  second parent adoption in order for both partners to have equal rights to the child. 

EGG DONATION

Egg Donation is a form of assisted reproductive technology in which a woman provides her eggs to intended parents for use in an in vitro fertilization (IVF) procedure (with either the intended mother or a gestational surrogate carrying the child) with the intent that the intended parents will become the legal parents of the child.  The range of legal issues involved in anonymous and identified egg donor arrangements is wide.  Some of these issues involve: donor compensation, travel agreement (if any travel is involved), legal obligations between parties and who the remaining egg or embryos in the cycle belong to, defining the donor’s obligation to inform the intended parents if in the future she obtains information regarding her health that may impact the child, confidentiality and privacy between the parties as well as ensuring that all parties are aware of the risks and consequences involved with the medical procedures and egg donation in general.  Perhaps the most critical term that must be included in any egg donor contract is that the donor is knowingly and voluntarily terminating any potential parental rights so that any child born as a result of the donation is legally that of the intended parents only.

SPERM DONATION

Many couples and individuals are choosing to use a sperm donor in an effort to begin or grow their families. There are many legal considerations for sperm donors and intended parents that should be considered when using a sperm donor. Florida Statutes § 742.14 states in part that a the donor of any sperm, other than the commissioning couple or a father who has executed a Preplanned Adoption Agreement under s. 63.213, shall relinquish all paternal rights and obligations with respect to the donation or the resulting children.   It is important to have a contract which clearly identifies that the biological father has no legal rights to the child and has no fatherly responsibilities.  It is also important that a licensed physician perform the insemination to best ensure enforceability of the contract.

EMBRYO DONATION

Embryo Donation is a form of assisted reproductive technology in which previously formed embryos (created for another individual or couple who previously underwent treatment and who no longer wishes to use those embryos to build their family) are donated to potential intended parents. When couples go through fertility treatments, such as in vitro fertilization, there are usually an excess of fertilized eggs (embryos) that are frozen and stored for later use. When the parents decide that their family is complete and embryos are still available, many couples opt to donate them to a couple or individual who is unable to conceive. There are two types of embryo donation: known (open) and anonymous. I have experience documenting both open and anonymous embryo donation agreements and can guide clients through the multitude of questions that arise in these donation arrangements.

ESCROW MANAGEMENT

Alexia Gertz, LLC will hold funds in an escrow account for the Intended Parent(s) so that the burden of providing reimbursements and monies to their donor or gestational carrier is taken care of.

All funds held by Alexia Gertz, LLC are fully insured. Based on the requirements and provisions of the Donor Agreement or Gestational Carrier Contract, Alexia Gertz, LLC collects and scrutinizes receipts and gathers all supporting documents needed prior to making reimbursements. Alexia Gertz, LLC also consults the donor agency and/or intended parents prior to reimbursing expenses submitted. Finally, on a monthly basis, Alexia Gertz, LLC provides a detailed account statement to Intended Parent(s) so that they remain aware of disbursements being made from their account.

INTERNATIONAL CLIENTS

I work with international clients to help them achieve their dreams of starting a family. I have a referral network of IVF clinics and surrogacy and egg donor agencies that allow my clients who are interested in utilizing assisted reproductive technology and family formation in Florida. International clients often come to the United States for healthcare treatment for various reasons, including long waiting lists in their home countries. Often, fertility treatments, surrogacy programs, and egg donor programs are not available in their countries. Sometimes, a client may opt to come to the United States for fertility treatments because of a favorable exchange rate. Even with travel, it may be cheaper to undergo the process in the United States than it is in their countries.  Regardless of the reason, I am happy to assist you and make the process as easy as possible.