Who has the Right to Make Medical Decisions in Surrogate Pregnancies?

Welcoming the birth of a new child is typically an occasion of great joy and celebration. It can be doubly joyful if the birth is the result of surrogate pregnancy. Surrogate pregnancies occur when a couple contracts with a woman to use her womb in order to give birth to a child. The child is formed from an embryo containing the DNA from at least one of the intended parents, which is then implanted in the surrogate so it can develop. Because another person is in involved in this process who has no genetic connection or future parental role in the child’s life, family law issues around child custody and paternity are present in each pregnancy of this type and must be addressed to ensure the child is not left in legal limbo regarding who the parents are. A recent article in the Atlanta Journal-Constitution highlights a potentially negative aspect of this arrangement and serves to emphasize the need to draft a surrogacy contract that takes into the account the rights of the surrogate in regards to her own body. A woman in California contracted with a man from Georgia to serve as a surrogate for his children and ended up pregnant with triplets. The man demanded the surrogate abort one of the embryos, which the woman refused to do. Florida has specific laws on rights and obligations of all parties in a surrogacy contract, unlike other states, and an overview of these provisions will follow below.

Who can be a Party in a Surrogacy Contract?

Florida has very specific requirements about who is permitted to enter into a surrogacy contract. The law provides that only a legally married couple over the age of 18 can contract to hire a surrogate, and the surrogate must also be 18 years or older. In addition, the couple contracting with the surrogate must obtain medical opinions that certify one of the following diagnoses:

  • the woman commissioning a surrogate is unable to physically carry a baby to term;
  • pregnancy would endanger the physical health of the commissioning mother; or
  • pregnancy would risk the life of the fetus.

If any of these requirements is missing the contract is not binding or enforceable.

Who is Considered the Parent?

As part of the surrogacy agreement, the commissioning couple agrees to assume fully custodial and parental responsibility for the child upon birth, even in the event the child has physical or mental impairments. Conversely, the surrogate agrees to relinquish all parental right to the child, except in one very unlikely case where it is later determined that the child is not biologically related to either member of the commissioning couple. In addition, within three days of the child’s birth, a petition must be filed by commissioning couple asking a court to confirm their status as parents. Once the court determines the surrogacy contract is valid and at least one member of the commissioning couple is a genetic parent to the child, the commissioning couple is considered the child’s legal and natural parents, and the court will issue an order requiring the issuance of a birth certificate with both parents listed as the natural parents.

Rights and Obligations of Each Party

Finally, the couple must agree that the surrogate has unilateral consent over medical intervention or management of the pregnancy, and the surrogate must agree to undergo medical treatment and follow a doctor’s instructions about prenatal health. The couple is only permitted to pay the surrogate for the following expenses spanning from the prenatal to postpartum periods:

  • living;
  • legal;
  • medical;
  • psychological; and
  • psychiatric.
Speak to a Family Law Lawyer

Having a child is something everyone should have the opportunity to experience, but if you are having difficulty realizing that dream in a natural way and wish to explore adoption or surrogacy, consulting with an experienced family law attorney is the best way to learn about all the legal requirements for each option. Stok Kon + Braverman, in Fort Lauderdale and Boynton Beach, offer legal services in a wide range of family law matters and can assist you with your case. Contact us today to schedule your confidential consultation.