Gestational Surrogacy Contract

Unlike Massachusetts, California and New Jersey, in Florida gestational surrogacy is governed by statute. A valid gestational surrogacy contract must comply with the statute's stringent procedural requirements. Valid contracts must include a provision stating that either the commissioning mother is unable physically to gestate a pregnancy to term; or that gestation will cause a risk to the health of the commissioning mother or fetus. F.S.A. 742.15(2)(a)(b) & (c). The contract must recite that the gestational surrogate will be the only one with the power to consent to clinical intervention in the pregnancy, but that she will agree to submit to reasonable medical evaluation and treatment. F.S.A. 742.15(3)(a) & (b). The commissioning couple must also agree to accept responsibility for the child after birth even if the baby is born with impairments so long as one of the commissioning parents is the genetic parent. F.S.A. 742.15(3)(d). If neither commissioning parent is the genetic parent of the infant, the gestational carrier must accept responsibility for the baby. F.S.A. 742.15(3)(e). The surrogate mother may receive reasonable living, legal and medical expenses. F.S.A. 742.15(4). F.S.A. 742.16 governs the procedure for affirming the genetic parents' status and requires the commissioning couple to file a petition with the court within three days after the birth of a child for an expedited affirmation of parental status. F.S.A. 742.16(1). A hearing is held after noticing the woman who carried the baby, any person claiming paternity and the treating doctor from the assisted reproductive technology facility. F.S.A. 742.16(4). The primary purpose of the hearing is to determine the validity of the gestational surrogacy contract, and to ensure that at least one member of the commissioning couple is the genetic parent of the baby. Once the court determines that the contract is valid and one commissioning parent is the genetic parent, the court must issue an order naming the commissioning parents as the baby's legal parents. F.S.A. 742.16(6). the Court then issues a second order directing the Department of Health to seal the original birth certificate and issue a new one listing the genetic parents as the legal parents of the infant. F.S.A. 742.16(8). Thus, Florida's statutory scheme does not permit the issuance of pre-birth orders although it does permit gestational surrogacy. Several states ban surrogacy contracts as contrary to public policy regardless of whether the woman carrying the baby is compensated or not. These include New York, Utah, Michigan and Arizona. See, N.Y. Dom. Rel. Law 123 (McKinney Supp. 1997), Utah Code Ann. 76-7-204(1)(d), Mich. Comp. Laws Ann. 722.855 (West 1993 & Supp.1996), Ariz.Rev.Stat. Ann. 25-218(A). Washington, Louisiana, Nebraska and Kentucky prohibit by statute surrogacy contracts which include a compensation element. Wash. Rev.Code Ann 26.26.230-26.26.240 (West 1997), La.Rev.Stat.Ann. 9:2713 (West 1991), Neb. Rev. Stat 25-21, 200 (1995), Ky.Rev.Stat. Ann. 199.590 (Banks-Baldwin 1997). However, courts in these states may in the future permit gestational surrogacy agreements where, as is the case here, there is no compensation given to the woman carrying the baby. See Havins & Dalessio, supra, 31 at 687.