Couples who cannot conceive on their own have alternatives for building their families. One of the ways couples can create a family is through gestational surrogacy.[1] A gestational surrogate (or gestational carrier) enters into a contract with another individual or couple, in which the surrogate agrees to carry the couple’s baby to term for reasonable reimbursement. Once the baby is born, the intended individual or couple become the legal parents.
Gestational surrogacy can be expensive and emotionally charged. Many states don’t have any laws on the books regarding gestational carrier agreements, making enforcement of the contracts that much more difficult in the event of a surrogate’s change of heart or other predicament.
Florida, however, has addressed the issue head on. Its relevant statute states:
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]
Florida requires the gestational carrier be at least 18 years old. In addition, the statute sets forth circumstances under which the agreement will be considered valid, including the inability of the commissioning mother to carry a pregnancy to term, potential risks to the health of the commissioning mother, and the health of the fetus if the commissioning mother were to carry the pregnancy to term.[3]
Florida has a number of agencies that serve as matchmakers between commissioning parents and surrogates. Experts recommend that commissioning parents choose a surrogate who is over 18 years old who has already had one to three uncomplicated pregnancies. In addition, the surrogate should meet other medical requirements and maintain a healthy lifestyle before and during the pregnancy.[4]
People dealing with infertility or other medical conditions who want children should consult with medical and legal professionals to discuss all their options.
[1] In gestational surrogacy, the baby isn’t genetically related to the gestational surrogate – the egg comes from the intended mother or an egg donor, and the sperm comes from the intended father or a sperm donor. See https://www.babycenter.com/surrogacy.
[2] Fla. St. §742.15(1) et seq. (emphasis added).
[3] Id. at §742.15(2)(a)-(c).
[4] For additional information on medical guidelines for gestational surrogacy, see the American Society of Reproductive Medicine’s website at http://www.asrm.org.