Nearly fifty years after the United States Supreme Court held that a woman had a
fundamental right to choose whether to have an abortion without excessive government
restriction, the current makeup of the Court decided that no such fundamental right exists.
In Dobbs v. Jackson, the Court overruled Roe v. Wade and created uncertainty regarding
the near and long-term future of women’s reproductive rights. The Supreme Court based
the Dobbs decision, in part, on the notion that the United States Constitution does not
include an express right to privacy. The result of the Court’s holding is that each state is
free to enact legislation on abortion, without restriction from any federal authority. While
abortion is legal in Florida, new legislation has restricted that right. If the state’s highest
Court upholds the new law, the legislature has signaled that it will, again, further restrict
women’s reproductive rights.
In 2022, the legislature passed HB 5 which, among other things, amended Florida
Statutes, section 390.0111, Termination of Pregnancies, to prohibit termination after 15
weeks, subject to certain exceptions. Here are the pertinent changes:
Planned Parenthood challenged the constitutionality of the new version of the
statute, which is currently under review by the Florida Supreme Court. However, the 15-
week standard is the effective law in Florida.
More recently, the Florida Senate passed SB 300, which reduces the time in which
termination is permitted from 15 weeks to 6 weeks. Here are the pertinent changes from
the current version of the law:
If the Florida Supreme Court upholds the constitutionality of section 390.0111, as
amended by HB 5, then SB 300 will become effective law 30 days after the date of the
All violations of section 390.0111 subject a physician to disciplinary action from
the Board of Medicine.
Subsection (13) expressly provides that failure to comply with the requirements of
this section constitutes grounds for disciplinary action under each respective practice act
and under section 456.072, which governs health professionals in Florida. The applicable
boards are instructed to adopt rules necessary to implement the statute.
In addition, Chapter 458 governs medical practice in the state. Section 458.331,
Florida Statutes, governs disciplinary action of physicians by the Board of Medicine. The
statute describes several grounds for disciplinary action, including “[f]ailing to perform
any statutory or legal obligation placed upon a licensed physician,” and “being convicted
or found guilty of…a crime…which directly relates to the practice of medicine.”
Accordingly, any violation of section 390.0111 subjects a physician to disciplinary action.
Further, section 390.0111 expressly provides that, even for violations that do not
create criminal liability, disciplinary action is permitted. For example, one of the
exceptions to criminal liability is for violation of subsection (3), which requires a
physician to obtain informed consent from the pregnant women, or, in the case of an
incompetent woman, her guardian. Informed consent includes numerous requirements
listed in the statute. Violation of this subsection of the statute subjects a physician to
disciplinary action by the Board of Medicine.
Possible discipline includes suspension or permanent revocation of a medical
license. However, it is not yet clear how the applicable medical boards intend to treat
violations of the law.
To the contrary, section 390.0111 clearly subjects a physician to criminal liability
and punishment, in addition to “any person” who “actively participates” in an unlawful
Section 390.0111(10) provides:
(10) Penalties for violation.–Except as provided in subsections (3), (7), and (12):
(a) Any person who willfully performs, or actively participates in, a
termination of pregnancy in violation of the requirements of this section or s.
390.01112 commits a felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
(b) Any person who performs, or actively participates in, a termination of
pregnancy in violation of this section or s. 390.01112 which results in the death of
the woman commits a felony of the second degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
For third-degree felonies, section 775.082 provides for a term of imprisonment not
exceeding 5 years; section 775.083 provides for a fine of $5,000; and section 775.084
provides for and enhanced term of imprisonment not exceeding 10 years for habitual
offenders (two felonies within five years).
The only exception to criminal liability is a violation of subsection (3) regarding
informed consent, discussed above. The other exceptions to subsection (10) relate to
disposition of fetal remains, which may constitute a first-degree misdemeanor, and
infants born alive, which may constitute a third-degree felony.
Some violations of section 390.0111 subject a physician who performs a partialbirth
abortion to civil liability.
Section 390.0111(10) provides:
(11) Civil action pursuant to partial-birth abortion; relief.–
(a) The father, if married to the mother at the time she receives a partial-birth
abortion, and, if the mother has not attained the age of 18 years at the time she
receives a partial-birth abortion, the maternal grandparents of the fetus may, in a
civil action, obtain appropriate relief, unless the pregnancy resulted from the
plaintiff’s criminal conduct or the plaintiff consented to the abortion.
(b) In a civil action under this section, appropriate relief includes:
1. Monetary damages for all injuries, psychological and physical, occasioned by
the violation of subsection (5).
2. Damages equal to three times the cost of the partial-birth abortion.
In other words, the statute permits two types of civil plaintiffs: (a) the husband of a
woman who receives a partial-birth abortion; and (b) the parents of a minor female who
receives a partial-birth abortion. “Partial-birth abortion” under the statute “means a
termination of pregnancy in which the physician performing the termination of pregnancy
partially vaginally delivers a living fetus before killing the fetus and completing the
Effect on Surrogacy
Section 390.0111 reserves professional, criminal, and civil liability for physicians
and active participants. The legislation does not indicate a penalty for pregnant women,
including surrogates, who obtain an abortion beyond the permissible fifteen (or six
weeks). Nor does the law provide for liability or penalties for intended parents or
agencies who assist surrogates with obtaining an abortion at any stage. Subject to the
permissible period, Section 390.0111 allows for a termination when the fetus has a fatal
fetal abnormality. During the entire pregnancy, a termination is allowed to save the
pregnant woman’s life or avert a serious risk of imminent substantial and irreversible
impairment of a major bodily function. Further, there is not a ban on traveling to seek
A surrogacy agreement should be drafted by an attorney with a firm understanding
of Florida law. Florida attorneys are in the best position to analyze nuanced issues of
Florida law, including the timing and effects of any changes in the law. In this unstable
legal landscape, certain contractual terms, such as timeliness of performance, are material
given that the legality of a termination depends upon gestational age. It may even become
necessary to amend the agreement after execution to conform with revised legislation.
These factors should be considered when selecting legal representation