Florida Assisted Reproduction, Surrogacy and Adoption Laws

Florida Assisted Reproduction, Surrogacy and Adoption Laws

 
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Wikimedia CommonsFlorida Laws regarding same-sex marriage, assisted reproduction, surrogacy and same-sex adoption

Same-Sex Marriage

Florida's constitution defines marriage as the legal union between one man and one woman. Same-sex marriages and civil unions are banned.

Constitution of the State of Florida - Article I Declaration of Rights

SECTION 27. Marriage defined.—Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

Assisted Reproduction

Update January 6, 2014 

On November 7, 2013, in the case of DMT vs. TMH, the Florida Supreme Court declared that a woman who provides eggs so that her then-committed partner can become pregnant has parental rights. The court ruled that if the woman who provided the eggs takes on responsibility for caring the child, her situation is analogous to that of an unmarried father, whose parental rights are constitutionally protected. (References: Florida Appellate Review, Jurist)

Florida law says that the donor of eggs, sperm or "preembryos" gives up all parental rights. If a married woman gives birth by means of IVF or donated eggs or "preembryos," the woman's husband is considered the father as long as both husband and wife both consent, in writing, to the treatment.

2013 Florida Statutes - Title XLIII Domestic Relations

Chapter 742 - Determination of Parentage

742.11 Presumed status of child conceived by means of artificial or in vitro insemination or donated eggs or preembryos.—
(1)  Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife, provided that both husband and wife have consented in writing to the artificial or in vitro insemination.
(2)  Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by means of donated eggs or preembryos shall be irrebuttably presumed to be the child of the recipient gestating woman and her husband, provided that both parties have consented in writing to the use of donated eggs or preembryos.

742.14  Donation of eggs, sperm, or preembryos.—The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.

Surrogacy

Florida allows only married couples to enter contracts with surrogates. As Florida does not allow same-sex marriage, this means that same-sex couples cannot have a child by means of surrogacy.

The law permits surrogacy only if the commissioning mother cannot carry a pregnancy to term or if the pregnancy will endanger her health or the health of the fetus.

The surrogate surrenders all parental rights at the child's birth unless it is determined that neither member of the commissioning couple is the child's genetic parent.

The commissioning couple can only give the surrogate money to pay for reasonable living, legal, medical, psychological, and psychiatric expenses that are related directly to the pregnancy.

2013 Florida Statutes - Title XLIII Domestic Relations

Chapter 742 - Determination of Parentage

42.15 Gestational surrogacy contract.—

(1)  Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate. A contract for gestational surrogacy shall not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple are legally married and are both 18 years of age or older.
(2)  The commissioning couple shall enter into a contract with a gestational surrogate only when, within reasonable medical certainty as determined by a physician licensed under chapter 458 or chapter 459:
(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.
(3)  A gestational surrogacy contract must include the following provisions:
(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.
(4)  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.

Same-Sex Adoption

Florida statute does not allow "homosexuals" to adopt.  On September 22, 2010, Florida’s Third District Court of Appeals ruled that a 1977 statute prohibiting homosexuals from adopting is unconstitutional (Source: Human Rights Campaign). Nevertheless, as of 2013, Florida statute retains the ban on same-sex adoption.

2013 Florida Statutes - Title VI Civil Practice and Procedure

Chapter 63 Adoption

63.042 Who may be adopted; who may adopt.—
(3)  No person eligible to adopt under this statute may adopt if that person is a homosexual.

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Needs More Information on Florida Donation Laws

Under Florida law, private donation, through artificial insemination, has been recognized as sperm donation, but natural insemination is not recognized as sperm donation.

The Florida sperm and egg donor law specifically requires for the child to be "conceived by means of assisted reproductive technology" (ART). Florida Statute 742.14. Artificial insemination (AI) is ART. Natural insemination (NI) is not ART. Under Florida law, a man who helps you conceive using NI is NOT a sperm donor; he is considered the father of your child and has legal rights to your child. Budnick v. Silverman is a Florida case that proves a pre-conception agreement is voided by natural insemination. Google: Budnick v. Silverman, 805 So. 2d 1112.

In Budvick v. Silverman, the Court wrote:
"However, the legislative act which created section 742.14 concerned "reproductive technology." Impregnation by the "usual and customary manner" has been around long enough so that it does not constitute "reproductive technology." Therefore, we do not read section 742.14 to apply to a conception that happened the old-fashioned way."

On the other hand, the 2nd District Court of Appeals of Florida recognized a private donation agreement between a lesbian couple and the brother of one of the women. The Court held that the biological father did not have custody because artificial insemination was used and the intent was for the man to only be a sperm donor. At first, the lower court held that the man was not a sperm donor because a fertility clinic was not used; however, this decision was overturned by the appellate court.

In A.A.B. v. B.O.C., 112 So. 3d 761 the court wrote:

"The appellant, A.A.B., and her partner, S.C., lived together
in a committed relationship. They decided to raise a child
together and asked S.C.’s brother, appellee B.O.C., to
donate his sperm to be used to impregnate A.A.B. B.O.C.
agreed, and after three attempts at performing
²do-it-yourself² artificial insemination, the parties were
successful at conceiving a child. A.A.B. and S.C. assumed
sole responsibility for all prenatal decisions and expenses.
When C.D.B. was born in 2002, B.O.C. lived in another
state and did not assume a parental role with the child."

"Following a hearing, the trial court found that because the
parties employed a do-it-yourself procedure to impregnate
A.A.B., rather than a clinical one, section 742.14 did not
apply. The court declined to recognize the oral
agreement between the parties that B.O.C. was to be merely
a sperm donor. Consequently, the court found that B.O.C.
had parental rights and it established a parenting plan to
provide for visitation and child support. In this appeal,
A.A.B. argues that the trial court erred in failing to find that
B.O.C. was a sperm donor within the meaning of section
742.14. We agree."

Google: A.A.B. v. B.O.C., 112 So. 3d 761

I helped a couple conceive using artificial insemination, and the mother conceived on her first ovulation cycle. Don't let bad intentioned men convince you sex is necessary for you to conceive. It's not necessary, and it voids the donor agreement.

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