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GESTATIONAL SURROGACY IN FLORIDA

Gestational Surrogacy is permitted by statute in Florida (Ch.742.15 FL Stat.) for married couples who are allowed to file Petitions for Affirmation of Parental Status. The surrogacy statute does not apply to any other Intended Parent in Florida. However, Other Intended Parents are still able to do surrogacy in Florida, either only by filing paternity and maternity petitions or through pre-planned adoptions.
 
Do courts grant pre-birth parentage orders?

Not generally. Under the statute, parentage orders that direct Vital Records to name the Intended Parents on the child’s birth certificate cannot be issued until after the baby is born. Sometimes, an interim pre-birth order is obtained that authorizes the Intended Parents to make medical decisions for the child.

Post-Birth Parentage Orders

Can both Intended Parents be declared the legal parents in a post-birth order under the statute if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: No, the couple should consider a pre-planned adoption under Chapter 63 or a 2-step maternity/paternity action.
  • Same-sex couple using an egg donor or sperm donor: Yes, if married, same as above
  • Single parent using own egg or sperm: No, the intended parent should consider a pre-planned adoption under Chapter 63 or a maternity/paternity action.

 
Can both Intended Parents be declared the legal parents in a post-birth order under the statute if no parent is genetically related to the child?

  • Married heterosexual couple:  No
  • Unmarried heterosexual couple: No
  • Same-sex couple: No
  • Single parent: No


What are the bases for venue?  County of the Intended Parents’ residence, county of the Gestational Carrier’s residence, county of the child’s birthplace, county of the “adoption entity,” or another venue agreed to by the parties.
 
Do results vary by venue?  Yes
 
If yes, are motions to waive venue accepted?  Yes, but it varies by county.
 
Is a hearing required to obtain a pre-birth order?  Varies by county.  When there is a hearing, the Intended Parents and their attorney typically are required to attend, and they often are able to “appear” by telephone only. All evidence is presented by Affidavits.
 
Is a pre-birth order possible in Florida based on a Gestational Carrier’s plan to deliver in Florida, if no party lives in Florida?  Yes
 
Will Florida Vital Records honor a pre-birth order from another state?  Yes, but they may sometimes require that the order first be domesticated by a Florida court. 
 
What is the typical time frame to obtain a birth certificate after delivery?  Approximately 4 weeks, but can be expedited to shorten this period considerably.

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Parent and Parent
 
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?
 Yes
 
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?
 Yes   
 
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Florida (i.e., neither of the Intended Parents lives in Florida)?  Yes

SECOND PARENT & STEPPARENT ADOPTIONS FOR FLORIDA RESIDENTS

Note: This situation typically arises if the child is born outside of the state. The parents then return to Florida to obtain a second parent adoption or stepparent adoption in Florida.

Will courts in Florida grant second parent adoptions or stepparent adoptions to heterosexual couples living in Florida?   Yes
Does the couple need to be married?   
No
 
Will courts in Florida grant second parent adoptions or stepparent adoptions to same-sex couples living in Florida?  
Yes
Does the couple need to be married?  
No

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes, Ch.742.14 FL Stat. addresses the donation of eggs, sperm, and pre-embryos.

TRADITIONAL SURROGACY IN FLORIDA

Traditional Surrogacy is permitted by Ch.63.213 FL Stat., which governs a preplanned adoption by Intended Parents from a “volunteer mother,” who is genetically related to the baby she is carrying. Unlike Gestational Surrogacy, it is open to any prospective parent. Note, however, that a Traditional Surrogate’s consent is revocable for up to 48 hours after birth.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
Elizabeth F. Schwartz
eschwartz@sobelaw.com
www.sobelaw.com
(305) 674-9222
 
Susan Stockham
AdoptionSurrogacyLaw@gmail.com
www.stockhamlaw.com
(941) 924-4949
 
Other attorneys practicing Reproductive Law in this state:
 
The Law Offices of Leslie Schreiber, P.A.
Miami, FL
lej.schreiber@gmail.com
www.leslieschreiber.com

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