Surrogacy in Florida

Key Aspects of Florida‘s Approach to Surrogacy:

1. Legality of Gestational Surrogacy Agreements (GSA): Florida expressly recognizes and authorizes gestational surrogacy arrangements by statute. Florida’s gestational surrogacy statute, codified at Florida Statutes Chapter 742, provides that a gestational surrogacy contract is “binding and enforceable” when the statutory requirements are satisfied. Unlike jurisdictions that rely primarily on common law or public policy analysis, Florida has enacted comprehensive legislation specifically governing gestational surrogacy and establishing procedures for the enforcement of such agreements. The statutory framework reflects a clear legislative policy in favor of enforcing valid gestational surrogacy arrangements, contemplating that the Gestational Carrier will relinquish any parental rights upon the child’s birth and that the commissioning parent(s) will immediately assume custody and all parental rights and responsibilities for the child. 
2. Gestational Carrier & Intended Parent Eligibility: Under Florida law, a Gestational Carrier must be at least 18 years of age. Florida law also prohibits the use of a Gestational Carrier who is a resident or citizen of a “foreign country of concern,” which includes the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea (North Korea), the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, and the Syrian Arab Republic, including any agency of, or entity significantly controlled by, such a country. Under Chapter 742, Intended Parents must be a legally married couple, both spouses must be at least 18 years old, and at least one member of the couple must be genetically related to the embryo. The arrangement must also satisfy one of three statutory medical requirements, determined within reasonable medical certainty by a licensed physician: that the commissioning mother cannot physically gestate a pregnancy to term, that gestation would pose a risk to the physical health of the commissioning mother, or that gestation would pose a risk to the health of the fetus. Neither Intended Parent may be a resident or citizen of a foreign country of concern, using the same list that applies to Gestational Carriers. 
3. Inclusivity: In Florida, all types of Intended Parents may pursue parenthood through surrogacy generally, including married heterosexual couples, married same-sex couples, unmarried couples, single Intended Parents, and Intended Parent(s) using donor sperm, donor eggs, or donated embryos. However, Florida’s gestational surrogacy statute (Chapter 742) applies specifically to legally married couples — other arrangements, such as those involving unmarried or single Intended Parents, may proceed instead under Florida’s assisted reproductive technology and preplanned adoption statutes, which are separate statutory pathways to establishing parentage.
4. Parentage orders: In Florida, Intended Parents must obtain a post-birth parentage order following the child’s birth. This order generally confirms the legal parentage of the Intended Parent(s), terminates any parental rights of the Gestational Carrier where applicable, directs the issuance or amendment of the child’s birth certificate to reflect the Intended Parent(s) as the legal parents, and provides legal certainty regarding custody, decision-making authority, and parental rights. While a post-birth order is required to establish parentage and amend the birth certificate, many Intended Parents also elect to obtain a pre-birth order where available and appropriate — a pre-birth order can identify the Intended Parent(s) as the individuals who will exercise parental authority immediately upon birth, be provided to the delivering hospital before delivery, facilitate hospital procedures and discharge planning, clarify who may make medical decisions for the child after birth, and reduce confusion among medical providers, hospital staff, and government agencies. Whether a pre-birth order is available, advisable, or routinely granted depends on the jurisdiction, the specific facts of the case, and the applicable statutory framework. Parentage proceedings are generally handled as confidential proceedings rather than public hearings, and specific procedures vary among Florida’s judicial circuits. 
5. Parental rights for non-biological parents: The precise process for establishing legal parentage in Florida may depend on the county and judicial circuit in which the action is filed, so Intended Parents should consult experienced Florida surrogacy counsel to confirm the procedures applicable to their circumstances. Generally speaking, however, the legal process is substantially similar regardless of whether the Intended Parent(s) are married, unmarried, single, same-sex, opposite-sex, genetically related to the child, or using donor gametes or donor embryos. The applicable statutory framework may differ — Chapter 742 versus Florida’s assisted reproductive technology or preplanned adoption statutes — but the ultimate goal in each case is obtaining a post-birth court order establishing the Intended Parent(s) as the child’s legal parents. 
6. The Gestational Carrier’s Right to Make Her Own Medical Decisions: Florida law does not allow a gestational surrogacy agreement to require or compel the Gestational Carrier to make decisions concerning her own body. The statute expressly provides that “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.” As a result, the Gestational Carrier retains the legal right to make medical decisions regarding the pregnancy, including decisions relating to termination of pregnancy, selective reduction, fetal intervention procedures, prenatal testing, management of pregnancy complications, and other medical treatment affecting her health and the pregnancy. Because of this, it is important for Intended Parents and the Gestational Carrier to discuss these issues thoroughly — including expectations around abortion, selective reduction, prenatal genetic testing, and communication during the pregnancy — before matching and before entering into a surrogacy agreement. 

It is highly recommended that both intended parents and surrogates have independent legal representation. This ensures that the surrogacy agreement is fair and that the rights and responsibilities of all parties are clearly outlined and understood. 

At Fairfax Surrogacy, we collaborate with legal professionals experienced in Florida’s surrogacy landscape, including Marla Neufeld, Esq. of Greenspoon Marder. Our network of legal experts ensures that your surrogacy journey complies with applicable laws and that your rights and interests are safeguarded throughout the process. 

Understanding and navigating these laws can be complex, but with the right guidance and support, intended parents and surrogates can embark on this journey with confidence and peace of mind.