Gestational Surrogacy

West Palm Beach Family Lawyer

Advances in medical technology have made it possible for many people who were previously unable to reproduce naturally to conceive a healthy biological child. This may require that the intended mother go through the process of in vitro fertilization herself; however, in many cases, a gestational surrogate is required to carry the baby to term. Creating a binding contract with a woman who agrees to be a couple’s surrogate is a complex legal process, so if you or a loved one are considering surrogacy, it is important to contact an experienced family law attorney who can streamline and simplify the process.

Assisted Reproductive Process

Once a gestational surrogate agrees to become pregnant through the use of assisted reproductive technology, she undergoes a series of tests and procedures. This process includes the completion of one of a variety of different procreative procedures, such as in vitro fertilization. However, all of the procedures require the intended couple’s eggs, sperm, or pre-embryos to be handled in a laboratory setting. In a gestational surrogacy, only the eggs or sperm of at least one of the intended parents are used. Once the egg is fertilized in vitro, the resulting pre-embryo is implanted.

Gestational Surrogacy Contract

In Florida, to create a legally binding relationship between the intended parents and a gestational surrogate, both parties need to sign an enforceable gestational surrogacy contract. In order to be considered valid and binding, the surrogate must be at least 18 years of age. Furthermore, the commissioning couple must be legally married and also over the age of 18 years.

A commissioning couple is only allowed to form a contract with a surrogate when:

  • The intended mother cannot bring a pregnancy to term;
  • The pregnancy would create a health risk for the intended mother; or
  • The pregnancy would cause a risk to the health of the fetus.

The determinations as to the health of the mother and fetus and the likelihood of gestation must be made with reasonable medical certainty by a licensed doctor.

Required Provisions

Any gestational surrogacy contract must include provisions stating that the surrogate:

  • Will be the only person who can consent to clinical intervention and management of the pregnancy;
  • Will complete a medical evaluation and follow medical directions about the health of the fetus;
  • Agrees to give up any parental rights when the child is born; and
  • Will take responsibility for the child if it is determined that neither of the intended parents is the genetic parent of the baby.

The commissioning couple must also agree to accept custody of the child after the birth, whether or not there is any physical or mental impairment. Finally, the couple need only agree to paying the reasonable living, legal, medical, and psychological expenses of the surrogate if they are directly related to the pregnancy.

If you are considering surrogacy as a means of having a biological child, the advice of an experienced attorney is essential to ensuring that the rights of all parties are protected. Please contact West Palm Beach family law attorney William Wallshein for a free consultation.