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Does Florida Allow For Pre-Birth Orders For Surrogacy?

Posted on April 21, 2016

Does Florida Allow For Pre-Birth Orders For Surrogacy?

Surrogacy is fraught with many possible complications, not the least of which is parenting rights.  Any contract between the surrogate mother and the intended couple should be very complete and clear that the surrogate forfeits all parenting rights to the intended parents.  That paves the way for an easy adoption process once the child is born.

But can the adoption process be entirely avoided?  Can the child be born from the surrogate mother already legally the child of the intended parents?

The short answer to that question is, “yes”.

The longer answer to that question is, “that depends”.

There are a number of different types of surrogacy, and you should understand the difference.  For instance, there is egg donor surrogacy, where the egg belongs neither to the intended mother nor to the surrogate mother.  There is genetic surrogacy, where the surrogate mother’s egg is used to create the child, thereby including the surrogate mother’s genetic contribution to the baby.  And there is gestational surrogacy, where the surrogate mother has no DNA involved, because both the egg and the sperm are provided by the intended mother.

So “it depends” means that the answer is “yes”, but it does not apply for all types of surrogacies.  In the case of genetic surrogacy, the birth mother has some basic rights, and there cannot be a pre-birth order in favor of the intended parents.

On the other hand, in the case of an embryo created outside the womb, using either the intended mother’s egg or the intended father’s sperm – or both! – a pre-birth order can be established.  In such circumstances, the surrogate mother holds no parenting rights under Florida Statute 742.15, as she has not contributed to the DNA of the child.  So the intended couple is free to apply for a pre-birth order, based on their genetic contribution and the contract they have in place with the surrogate mother.

Why is a pre-birth order advantageous?  First, it means that the child will be born with your name on it, and that will make life less complicated later on when birth certificates are required to establish his or her identity, such as for passport applications and security checks.  Second, it removes the hassle of going through a formal adoption process.  Although that process is much easier for children born of surrogate mothers than most other adoptions, it is still a hassle and there is always the possibility of something going wrong.  Third, no risk of something going wrong later on, such as regrets or attempts on the part of the birth mother to lay claims to your child.

It’s a good principle that the sooner you establish your rights, the less you will have to worry about.  Having the child born with your name on it will avoid plenty of complications in both the short and long term.  The State of Florida allows it, so why not take advantage of the opportunity to set the record straight from the start?

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