Florida Surrogacy Laws–Nature of the Contract

Under Florida law, Section 742.15, Florida Statutes, a contract between parties wishing to create a gestational surrogacy relationship is enforceable.  To be enforceable, as long as the gestational surrogate is eighteen years of age or older, and the commissioning couple are legally married and older than 18, the parties may be eligible to enter into such an agreement. Before drafting the contract, the parties must also meet other requirements.  It must be determined by a physician licensed under Chapter 458 (relates to medical doctors) or Chapter 459 (osteopaths) that one of the findings can be made: (a) the commissioning mother cannot physically gestate a pregnancy to term; (b) the gestation will cause a risk to the physical health of the commissioning mother; or (c) the gestation will cause a risk to the health of the fetus.  Once this determination can be made, the parties fall within the scope of the surrogacy laws. When entering into the actual contract between the commissioning couple and the gestational surrogate, there is a broad spectrum of issues to be addressed, many of which are driven by the desires, interests, and beliefs of the parties involved.  Regardless, however, the following components must be included, or potentially face the unenforceability of the contract: (a)  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. (b)  The gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health. (c)  Except as provided in paragraph (e), the gestational surrogate agrees to relinquish any parental rights upon the child's birth and to proceed with the judicial proceedings prescribed under s. 742.16. (d)  Except as provided in paragraph (e), the commissioning couple agrees to accept custody of and to assume full parental rights and responsibilities for the child immediately upon the child's birth, regardless of any impairment of the child. (e)  The gestational surrogate agrees to assume parental rights and responsibilities for the child born to her if it is determined that neither member of the commissioning couple is the genetic parent of the child. Importantly, as part of the contract, the commissioning couple may agree to pay only reasonable living, legal, medical, psychological, and psychiatric expenses of the gestational surrogate that are directly related to prenatal, intrapartal, and postpartal periods.  In essence, this provision precludes families from “buying” a child born from a gestational surrogacy, and will only allow them to pay the actual expenses incurred by the gestational surrogate.