Surrogacy

Under current Florida law, a Gestational Surrogacy Arrangement (GSA) requires at least one member of the Commissioning Couple to contribute genetic material to the child and prohibits the surrogate from donating her own ovum. In other words, the embryo is created utilizing either the intended father’s sperm (with donor egg), the intended mother’s ovum (with donor sperm), or the egg and sperm of both intended parents. Since the surrogate is not biologically related to the embryo, the intended parents assume immediate physical and legal custody of the child upon birth. Once a pregnancy is conceived, neither the intended parents nor the surrogate may change their mind and “back out” of the surrogacy agreement, regardless of the health of the child.
​In a Pre-Planned Adoption Arrangement, frequently termed Traditional Surrogacy Arrangement (TSA), a surrogate may donate her ovum to create the pregnancy. As with gestational surrogacy, a written agreement is required before commencing a pregnancy, however, Florida law also requires the surrogate to execute a consent to surrender her parental rights at the time of signing the agreement, subject to a 48 hour rescission period following the child’s birth. In the event the consent is rescinded, the parties must file a separate legal proceeding to determine custody, child support, and related matters. For this reason, Hausmann & Hickman, P.A. recommends the use of donor ovum in lieu of ovum from the surrogate.

There are many variables in a surrogacy arrangement that determine the overall cost and are generally paid for by the intended parents. Beyond the actual medical expenses which include fertility medications, embryo transfer procedures, prenatal care, and newborn expenses, intended parents may also provide their surrogate with reasonable living expenses during the course of her pregnancy. Expenses paid to the surrogate, or on her behalf, exclusive of medical expenses, may easily reach more than $50,000 and should be paid through an escrow agency unless otherwise agreed to by the parties. Additionally, the intended parents are responsible for the costs of screening a potential surrogate, her legal representation, and any medical expenses not covered by her current health insurance policy.

Florida’s only legal requirement is that a surrogate must be at least 18 years of age. Most fertility doctors, however, are more particular when determining if a woman is an acceptable candidate for a surrogate pregnancy. Generally a surrogate should be under the age of 40, have experienced 1-3 uncomplicated pregnancies, have a proportionate height/weight ratio, and maintain a safe lifestyle free from smoking, drugs, or alcohol abuse. A good support system, reliable transportation, and health insurance that covers a surrogate pregnancy are also important attributes.

Unfortunately, it is becoming very difficult to locate a health insurance policy that covers a surrogate pregnancy. If a surrogate currently maintains maternity coverage, it should be verified by the surrogate and reviewed by the intended parents, to be certain the policy does not contain exclusions for a surrogate pregnancy. In the event such exclusions exist, thereby prohibiting coverage under a current policy, the intended parents may be required to purchase a supplemental policy, known as a complications policy, to provide medical coverage for the surrogate under certain circumstances. Assuming the surrogate has fulfilled her contractual responsibilities to maintain her maternity coverage, the intended parents shall assume financial responsibility for all uncovered medical expenses associated with the surrogacy arrangement. If the surrogate is not eligible for any medical coverage, intended parents may negotiate with various medical providers in advance of services to minimize their financial responsibility for the surrogate’s treatment.

Yes! Hausmann & Hickman, P.A. frequently receives referrals from various fertility clinics, surrogacy matching agencies, and attorneys who practice in the area of reproductive law but are unable to finalize a surrogacy arrangement, for one reason or another. Likewise, we will refer parties to attorneys and agencies in other states if necessary to meet their medical and legal needs.

No, Hausmann & Hickman, P.A. does not maintain an inventory of egg or sperm donors. Please contact your local fertility specialist to determine if they have a suitable candidate or will refer you to any agency they have successfully networked with.

Following a “match”, a contract between the intended parent(s), surrogate, and her husband (if married) must be drafted. Supporting affidavits, medical record releases, and healthcare advance directives should also be prepared to authorize the intended parents to receive ongoing medical information through the surrogate’s pregnancy. Once retained, Hausmann & Hickman, P.A. is available to conference with the intended parents and/or surrogate, by telephone, Skype, or in-person, to discuss the agreement details. Between 24-30 weeks gestation, Hausmann & Hickman, P.A. will commence legal proceedings in Florida and request a Pre-Birth Order authorizing the intended parents’ immediate access to the child upon birth and require all medical providers to seek payment for the child’s medical expenses from the intended parents. Upon the birth of the child, Hausmann & Hickman, P.A. will return to court to request a final order amending the child’s birth certificate to reflect the intended parents’ parentage.

Yes. An attorney who represents the intended parents may not represent the surrogate and her husband. Although surrogacy arrangements are typically friendly and amicable, discussing expenses and “what ifs” are best left to the professionals not personally involved. Legal representation for a surrogate average $1,000-$1,500, is paid for by the intended parents and is considered money wisely spent, for the benefit of everyone.

Although all parties are welcome to attend the court proceedings, the hearings are calendared as expeditiously as possible to facilitate everyone’s goal – legalizing the intended parents’ relationship to the child. Since most hearings are uncontested, Hausmann & Hickman, P.A. is able to handle the proceedings without requiring the surrogate or intended parents’ attendance.

In the case of a gestational surrogacy arrangement in compliance with Florida law, the surrogate is not a biological parent to the child and, accordingly, does not have any legal right to the child following birth. Likewise, the intended parents may not require the surrogate to parent their child. In the case of a traditional surrogacy or preplanned adoption arrangement, when a surrogate has donated her ovum, either the surrogate or intended parents may rescind the consent and terminate the agreement up to 48 hours following birth.

Currently, Florida Vital Records requires an initial birth certificate application be completed by the hospital, immediately following the child’s birth, which lists the surrogate as the child’s mother as it is the surrogate who gave birth to the child. This initial birth certificate should include the name the intended parents have selected for the child and may include the intended father’s name. Upon entering the Final Order Affirming Parental Status, the court will direct Florida Vital Records to amend the child’s birth certificate to list the intended parents as the mother and father of the child. The original birth certificate application will no longer be accessible. All information regarding the surrogate will be deleted from the birth certificate and a new, accurate birth certificate will immediately be issued which does not identify the child’s birth as a surrogacy. The process of correcting a child’s birth certificate is usually completed within 3 weeks following the child’s birth.

No. Although surrogacy law in Florida is favorable, so are the laws in many other states. Hausmann & Hickman, P.A. is available to represent intended parents who reside in Florida and will assist in locating local counsel to represent a surrogate who resides in another state where surrogacy is permitted. In the event intended parents are not Florida residents but are working with a surrogate who resides in this state, we are available to represent the intended parents, the surrogate, and/or handle the final legal proceedings. Please contact us for more information.

Yes. Hausmann & Hickman, P.A. has represented intended parents who reside in the United States and internationally. We have a Spanish-speaking legal assistant ready to provide translation and supportive service to accommodate our clients.

Yes. Florida law allows single parents and same-sex couples to create their families through artificial reproductive technology and achieve the dream of raising a biological child.

Hausmann & Hickman, P.A. has represented numerous single parents and same-sex couples in drafting co-parenting agreements and surrogacy agreements that protect and secure their rights to their biological children born to a surrogate. Please contact us for more information.