What is Surrogacy and the Legal Process Associated with It?


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Modern science has given infertile couples the opportunity to enjoy the fundamental right of parenting children. This has spawned a new area of the law that is challenging, complicated and fascinating to those of us who practice it.

Modern science has given infertile couples the opportunity to enjoy the fundamental right of parenting children. This has spawned a new area of the law that is challenging, complicated and fascinating to those of us who practice it.

First you should know that there are two types of surrogacy – Gestational Surrogacy and Genetic Surrogacy, often referred to as Traditional Surrogacy.

In Traditional Surrogacy, the surrogate is genetically related to the child she is carrying. She is both the Egg Donor and the carrier of the child(ren). In Gestational Surrogacy, the surrogate carries the genetic material of the commissioning couple - sperm/egg donors. Gestational Surrogacy provides couples the opportunity to be genetically related to the child(ren) and offers greater legal protections at the time of the birth.

The laws regarding surrogacy vary by state. Florida has codified its rules, regulations and protections and therefore is a safe state. Florida, however, requires that the couple engaging in surrogacy be “lawfully married”, which by definition excludes, domestic partners.

When a couple needs to be match with a surrogate, depending on their requirements, it can take between 2 and 8 weeks. Looking for a surrogate mother of a specific ethnicity or in a particular geographic location can extend the timeframe. A good agency will complete a thorough evaluation of both the commissioning couple and the surrogates, including background checks, psychological and medical screenings. It helps to have a good team of professionals to guide and safeguard everyone involved.

Florida prohibits direct compensation to surrogate mothers but allows for reasonable expenses to paid. The expenses paid and the amounts are subject to negotiations.

Once the child is born, we have 3 days to file a petition with the Court requesting the affirmation of parental status. This is the legal process during which the Court examines the Gestational Surrogacy Agreement and enters an Order requiring the Department of Vital Statistics to issue a new birth certificate naming the commissioning mother and father as the parents of the child born.

No one should engage in a gestational surrogacy relationship with a surrogate without having an attorney who handles these matters. The risk is too great.



ABOUT THE AUTHOR: Aliette H. Carolan, Esq.
Aliette Hernandez Carolan, Esq., practices in the area of surrogacy, marital and family law in downtown Miami. She is on the Children’s Issues Committee of the Family Law Section of the Florida bar.

Copyright Law Offices of Aliette H. Carolan, P.A.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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