Pre Birth Order versus Post Birth Order State

Many factors may influence where to embark on your surrogacy journey. Because there are no federal laws regulating surrogacy, legislation is left to individual states. A Commissioning Couple should be familiar with each state’s approach to surrogacy in order to make the best decision for their family. 

States are generally categorized as surrogacy friendly, non-surrogacy friendly, or somewhere in between. While Florida is sometimes considered a “somewhere in between” state, it should lean into the category of “surrogacy friendly.” Unlike many states, Florida has a statute permitting surrogacy.  Chapter 742, Florida Statutes, provides that there will be a “binding and enforceable contract” where the “gestational surrogate agrees to relinquish any parental rights.” The clarity provided by the statute makes Florida more desirable for a Commissioning Couple than states that lack surrogacy statutes.

Florida is a post-birth state, which means that parentage is not legally established until after the birth of the child.  This alone, however, should not dissuade Commissioning Couples from using a Florida surrogate. In practice, the benefits afforded by pre-birth states can be replicated through various means with the help of an attorney.

Prior to birth, the attorney can obtain an order from the judge granting the Commissioning Couple the rights and privileges as though the child was born to the Commissioning Couple. The order allows the Commissioning Couple to make medical decisions, have access to the child upon birth, and have the child discharged to the Commissioning Couple from the hospital. In fact, many hospitals require such an order prior to delivery.

Once the child is born, the attorney will petition the court for a legal affirmation of parental status. The documents required for the petition may be executed in advance and the Commissioning Couple is not required to be present for the hearing. Once the court has established “that a binding and enforceable gestational contract has been executed… the court shall enter an order stating that the commissioning couple are the legal parents of the child.”  Fla. Stat. § 742.16. 

A Commissioning Couple should feel comfortable commencing their surrogacy journey in Florida. A knowledgeable surrogacy attorney can ensure that, throughout the journey, parental rights are granted and protected.