DADsquared discusses Florida Same Sex Surrogacy laws with Family Law Attorney Marla Neufeld.

We recently had the great opportunity to chat with Marla Neufeld, a Florida Family Law Attorney doing some great work for our community.
With Marla’s personal journey with infertility and use of a gestational surrogate, she was able to take her legal background and combine it with her compassion and understanding of the surrogacy process by helping others start a family using the available third party reproductive technologies and adoption laws in Florida. Marla is honored to represent same sex couples,married couples and individuals in Florida seeking to utilize various reproductive technologies.

DADsquared: Can same sex couples use surrogacy in Florida to start a family?

With current advances in reproductive technology coupled with the evolving legal landscape in Florida, surrogacy for same sex couples is permissible and Florida does not prohibit egg or sperm donation for same sex couples. There are additional steps required for same sex couples to ensure parental rights for the biological and non-biological parent. After selecting a surrogate, the same sex couple enters into a Pre Planned Adoption Agreement with the surrogate which is governed by Florida Statute 63.213. This is an agreement in which a surrogate agrees to bear a child and relinquish parental rights to the commissioning couple. Florida law has mandatory requirements of what must be included in this type of agreement to be effective in terminating the surrogate’s parental rights. Upon the birth of the child(ren), the non-biological parent files a Second Parent Adoption (see below) to obtain full parental rights to the child(ren) so that both parents can be placed on the child’s birth certificate. Surrogacy law is state specific and constantly evolving, so please consider your jurisdiction and laws prior to entering into a surrogacy arrangement.

DS: Do same sex couples need to go through an adoption using the surrogacy process in Florida?

Since gestational surrogacy agreements (which allow for automatic parental rights for both parties in the commissioning couple) are currently illegal in Florida for same sex couples, the process in which the non-biological partner obtains full parental rights to the child(ren)

is through the process of Second Parent Adoption once the child(ren) are born via a surrogate. When the child(ren) are born, only the biological parent in a same sex couple will have parental rights and be placed on the birth certificate. Without utilizing a Second Parent Adoption, the non-biological parent in the same sex relationship has no legal rights to the child(ren). The process for Second Parent Adoption, which can take approximately 2-3 months from filing the adoption petition, is similar to a standard adoption which involves filing an adoption petition, fingerprints, background checks, a home study, obtaining the necessary consents to terminate parental rights, a search of the putative father registry to ensure nobody else claims parents' rights to the child, a final adoption hearing and judgment, and ultimately placing both parents on the birth certificate.

DS: Is a contract required for the donation of egg, sperm, or embryos?

The donation of eggs, sperm and embryos are governed by Florida Statute 742.14. The statute expressly provides that the donor of any egg, sperm or embryo (except as otherwise provided) shall relinquish all maternal or parental rights and obligations with respect to the donation or the resulting child(ren). It is critical that a contract be entered into between the commissioning couple and the donor of the genetic material so the intent of the parties is clear as to the termination of any parental rights as to the donor party. The donation contracts between recipients and the donor specifically detail the parties' obligations and rights with regard to the donation, and cover issues that arise in third party reproductive technology including, but not limited to, parental rights of the commissioning couple and relinquishment of parental rights by the donating party, confidentiality, required medical testing, future communication between the parties, expenses, liability for complications, and the rights of the child(ren).

DS: Can a same sex partner donate egg or sperm to their partner, retain parental rights, and not be viewed as a donor?

In late 2013, the Florida Supreme Court held that the Florida egg, sperm and embryo donation statute (Florida Statute 742.14) was unconstitutional as it only allowed legally married heterosexual couples to retain parental rights to child born resulting from donated genetic material from one party to the other. The case involved a lesbian couple where one woman donated her egg (“biological mother”) to her partner (“birth mother”) to carry the child. Years after the birth of the child, the birth mother refused to give the biological mother parental rights and asserted the biological mother was only a donor of the egg with no parental rights.. Under Florida’s donation statute, since they were not a legally married couple, when the biological mother donated her egg, she was viewed as an egg donor and did not retain any rights to the resulting child. The case, which was a matter of first impression, was argued to the Florida Supreme Court who determined that the donor statute was unconstitutional because it denied the biological mother the right to raise her child. The Florida Supreme Court held, “we conclude that the state would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent.” This is great news for same-sex couples wishing to utilize assisted reproductive technology to start families in Florida as they are no longer deemed just donors of genetic material if their intent is to retain parental rights to the resulting child. Regardless of the statute, a contract setting forth the parties intentions is strongly recommended when dealing with any reproductive technology law issues.

DS: What should I look for when selecting a surrogate?

All surrogates should be fully informed of the entire surrogacy process and it is important for her to understand that she will have to interrupt her family and work schedules to attend medical appointments and undergo fertility drug protocols and embryo transfer procedures, perhaps multiple times. The surrogate should understand any health risks associated with being a surrogate, including common side effects from the fertility medications and all risks associated with pregnancy. The surrogate’s spouse/significant other should understand these issues as well. It is important that you are on the same page about the difficult issues relating to the pregnancy such as how many embryos to transfer and whether she agrees to termination or selective reduction of the pregnancy if medically necessary. You want to ensure that she leads a healthy, pregnancy friendly lifestyle (i.e. diet, exercise, no drugs/alcohol, no diseases or health conditions that would impact the pregnancy), that she has good support system, that she has had a prior uncomplicated birth, is free of a criminal history, and that you feel in your gut that you can trust her with this important role. The surrogate should be no older than 40 and prior c-sections should be limited. It is helpful to determine that the surrogate has a car so she can go to the numerous appointments and you want to consider her job to see if it is conducive to pregnancy and also to determine her wages as you may be responsible for her net lost wages in the event she is on doctor ordered bed rest during the pregnancy. Surrogates are generally reviewed by a medical doctor, psychologist, and surrogacy agency (if applicable) to help assist with these determinations as to whether she fit to act as a surrogate.

DS: What are the types of costs associated with surrogacy in Florida?

Surrogacy costs vary depending on numerous factors, however, the price for surrogacy can range from $15,000 (friend/family member acting as a surrogate with no compensation, referred as a “compassionate surrogacy”) upward of $150,000. The commissioning couple seeking to use a surrogate are responsible for all of the costs relating to the journey which include (all estimates), but are not limited to, the fertility clinic, obstetrician, and hospital expenses for the surrogate (prices vary), a lawyer for the commissioning couple ($6,000-$10,000) and for the surrogate ($500-$1,000), psychological review of the surrogate and spouse/significant other ($400-$600), surrogacy agency fee ($10,000-$16,000), reasonable living expenses of the surrogate ($200/month), the surrogate’s fee ($20,000-$35,000), health insurance for the surrogate (varies depending on insurance of surrogate, if any), term life insurance policy for the surrogate ($150-$200), and maternity clothes for the surrogate ($800). If a donated egg is required, the costs include the egg donation agency which may include insurance and lawyer fees ($4,500-$10,000) and donor compensation ($5,000-$10,000). There are certain contingent payments that may be due to the surrogate, for example, twins ($4,000), c-section ($1,500), loss of organs ($5,000), surgery on fetus ($500), and net lost wages based on doctor ordered bed rest.

DS: Will a sperm donor have parental rights in a “do it yourself” artificial insemination under Florida law?

Florida’s egg, sperm, and embryo donation statute (Florida Statute 742.14) provides that the donor of egg, sperm, or embryos has no parental rights to the resulting child (unless between a commissioning couple or a preplanned adoption agreement is in place) when using assisted reproductive technology. Florida law defines “assisted reproductive technology”, in part, as procreative procedures which involve the laboratory handling of human eggs or preembryos. A 2002 Florida case found that a woman who wanted to get pregnant in the “usual and customary manner” with a friend for the use of his sperm could not relieve the man who provided his sperm of his parental rights despite an agreement providing otherwise that he was just a sperm donor because the child was created in the “usual and customary way”. The statute did not contemplate impregnation of woman with donated sperm by means of intercourse. In contrast, a 2013 Florida case involved a “do it yourself” artificial insemination using the biological mother’s egg by her same sex partner’s brother’s sperm. In that case, the court found the man who donated his sperm could be deemed a donor with no parental rights because while the procedure was not done in a laboratory, the court held “the statute does not require that the artificial insemination be performed in a clinical setting”. Regardless of the method of conception, it is imperative to consult with an attorney and have the proper contracts in place to specify the parties intentions regarding parental rights and the status of the donor of egg or sperm.

DS: What is traditional surrogacy compared to gestational surrogacy?

“Traditional surrogacy” is the process in which the surrogate either undergoes artificial insemination or IVF with sperm from the male or from a sperm donor. The surrogate herself provides the eggs and is therefore genetically related to the child. This is a riskier approach to surrogacy because the surrogate has a genetic relationship to the child and there have been cases where the surrogate has retained parental rights to the child. With “gestational surrogacy”, the surrogate does not have a genetic relationship to the child. With two fathers, donor eggs will be utilized with one or both of the father’s sperm and the resulting embryo(s) are transferred into the surrogate. In this scenario, the surrogate is not biologically related to the child. Options for gestational surrogacy for two fathers include: (1) splitting the donated eggs, fertilizing the eggs with the sperm of each of the fathers separately, and transferring one embryo from each fertilized egg into the surrogate so that if twins are born, each father may be genetically related to one of the children, (2) utilizing a relative’s egg with the donated sperm of the non-relative partner which allows both partners to have a genetic connection to the child, or (3) using one father’s sperm for the first surrogacy and the other father’s sperm for the second surrogacy.

DS: What medical procedures are required for the surrogate?

Once the surrogate is evaluated by the physician, the parties are ready to start medications, and the surrogacy contract is fully executed, the surrogate will require treatment with various hormones. Each fertility clinic prescribes different protocols, however, the general approach is as follows: The surrogate begins with estrogen and progesterone which are administered either orally, by injection, by skin patch and/or vaginally. Also, the surrogate will take Lupron, a subcutaneous injection, given daily starting with synchronization of the cycles until the egg retrieval (if egg donor used). When the uterus of the surrogate is thick enough, the embryo(s) will be transferred into the surrogate's uterus. This procedure typically takes 30 minutes and is done as an outpatient. The commissioning couple are generally allowed in the room during the procedure as long as the surrogate agrees. Following the embryo transfer, the surrogate will be required to lie flat for 15 minutes - 1 hour before going home. For the next 2-3 days rest at home is required. Progesterone injections and estrogen supplementation will be given to the surrogate until the pregnancy test is done, 12-14 days following embryo transfer. Following a positive pregnancy test, hormone support will be continued on the surrogate for several weeks throughout the first trimester as needed. There will be frequent weekly blood tests and ultrasounds during this time period until the surrogate is released to the obstetrician and the pregnancy is treated like a “normal” pregnancy at that point.

DS: What are the general “baby” steps in same sex surrogacy?

After a medical doctor determines that surrogacy is indicated for the commissioning couple (medical clearance is statutorily required in Florida), the general steps in a surrogacy journey are as follows:

1)    The commissioning couple secures a surrogate that has cleared a background check, psychological and medical examination. Commissioning couples may locate a surrogate on their own (i.e. Internet, friends, family) or through the use of a surrogacy agency.

2)   The intended parents start the process of obtaining or confirming health insurance for the surrogate. Many insurance agencies, especially in Florida, are starting to exclude surrogacy from coverage for health insurance benefits.

3) Simultaneous with the selection of a surrogate, the intended parents select the fertility clinic they wish to use to help create the embryos to be transferred into the surrogate. Based on the location of the surrogate, you may need to select a second fertility clinic closer to the surrogate to monitor the surrogate during the surrogacy process.

4)   Before fertility medications can start for the surrogate, the surrogacy contract will be drafted, reviewed, negotiated. This contract details the parties' rights, obligations, intentions and expectations in connection with their third party reproductive technology arrangement, and covers subjects such as parental rights, custody issues, compensation, location of delivery, future communication between the parties, insurance, control over medical decisions during the pregnancy, payment of medical bills, liability for medical complications, and other provisions required by Florida law.

5) Prior to the embryo transfer and throughout the pregnancy, an escrow agent will deliver the money being paid to the surrogate according to the schedule of payments established in the surrogacy contract.

6) The surrogate will continue to see the fertility doctor until around eight (8) - ten (10) weeks of pregnancy when she is released to an obstetrician, to be selected by the commissioning couple. Fertility medication for the surrogate may continue for twelve (12) weeks of pregnancy.

7)   Around the second trimester, the lawyer will coordinate with the risk manager or nurse administrator of the obstetric department of the hospital to ensure that the delivery process will be smooth for the parties. It is important for the hospital staff to understand the surrogacy arrangement so the commissioning couple has full hospital access. Most hospitals formulate a birth plan which includes who has access to the nursery, whether the commissioning couple want a separate room for visitation, and who will have access to the delivery room in the event of a vaginal birth or c-section.

8)    For heterosexual married couples, an expedited confidential action can be filed three days following the birth of the child in order to place both parents’ names on the birth certificate. For same sex couples, once the child is born, a second parent adoption is filed to place the non-biological parent on the birth certificate. This will give full parental rights to the non-biological parent which will be recognized in Florida or any other state.

DS: Marla, I thank you so much for your time and all this great information.
It was my pleasure!

DS: Good luck with your family.
And to you and your readers also!!

Marla is an attorney at Greenspoon Marder's Family Law practice group, a full service Florida law firm, founded in 1981, offering legal services such as family law, real estate, trust and estates, land use, and litigation. Contact Marla for a free consultation at 954-761-2929 or email her here.