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SURROGACY: We are the biological/genetic Intended parents and we will be utilizing a Gestational Surrogate

Orlando, FL |

SURROGACY: We are both the biological/genetic Intended parents (my eggs, my husband's sperm) and we will be utilizing a Gestational Surrogate to carry our embryos because I am unable to carry a child. What do we need to do to get our names on the birth certificate? Will the hospital add our name to the birth certificate? Would we need a pre-birth order prior to birth? How do we go about applying for a pre-birth order Any other advice would be helpful

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Attorney answers 3


For this type of thing you definitely need to hire an attorney in your area. There are far too many things that can go wrong and you need to cover yourselves as best you can with a proper agreement.

R. Jason de Groot, Esq., 386-337-8239


I reproduce the following provisions of the Florida Statutes by way of general information, not legal advice. I hope they will help you. 742.15 is in the body of this response, and 742.16 is in the comment following it.

Please hire counsel in Florida to assist you with this. I am not licensed there, so don't take the provision of this general information as legal advice.

742.15 Gestational surrogacy contract.—
(1) 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) The commissioning couple shall enter into a contract with a gestational surrogate only when, within reasonable medical certainty as determined by a physician licensed under chapter 458 or chapter 459:
(a) The commissioning mother cannot physically gestate a pregnancy to term;
(b) The gestation will cause a risk to the physical health of the commissioning mother; or
(c) The gestation will cause a risk to the health of the fetus.
(3) A gestational surrogacy contract must include the following provisions:
(a) The commissioning couple agrees that the gestational surrogate shall be the sole source of consent with respect to clinical intervention and management of the pregnancy.
(b) The gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.
(c) Except as provided in paragraph (e), the gestational surrogate agrees to relinquish any parental rights upon the child’s birth and to proceed with the judicial proceedings prescribed under s. 742.16.
(d) Except as provided in paragraph (e), the commissioning couple agrees to accept custody of and to assume full parental rights and responsibilities for the child immediately upon the child’s birth, regardless of any impairment of the child.
(e) The gestational surrogate agrees to assume parental rights and responsibilities for the child born to her if it is determined that neither member of the commissioning couple is the genetic parent of the child.
(4) As part of the contract, the commissioning couple may agree to pay only reasonable living, legal, medical, psychological, and psychiatric expenses of the gestational surrogate that are directly related to prenatal, intrapartal, and postpartal periods.

History.—s. 2, ch. 93-237.

L. Maxwell Taylor

L. Maxwell Taylor


742.16 Expedited affirmation of parental status for gestational surrogacy.— (1) Within 3 days after the birth of a child delivered of a gestational surrogate, the commissioning couple shall petition a court of competent jurisdiction for an expedited affirmation of parental status. (2) After the petition is filed, the court shall fix a time and place for hearing the petition, which may be immediately after the filing of the petition. Notice of hearing shall be given as prescribed by the rules of civil procedure, and service of process shall be made as specified by law for civil actions. (3) Upon a showing by the commissioning couple or the child or the gestational surrogate that privacy rights may be endangered, the court may order the names of the commissioning couple or the child or the gestational surrogate, or any combination thereof, to be deleted from the notice of hearing and from the copy of the petition attached thereto, provided the substantive rights of any person will not thereby be affected. (4) Notice of the hearing shall be given by the commissioning couple to: (a) The gestational surrogate. (b) The treating physician of the assisted reproductive technology program. (c) Any party claiming paternity. (5) All hearings held in proceedings under this section shall be held in closed court without admittance of any person other than essential officers of the court, the parties, witnesses, and any persons who have received notice of the hearing. (6) The commissioning couple or their legal representative shall appear at the hearing on the petition. At the conclusion of the hearing, after the court has determined that a binding and enforceable gestational surrogacy contract has been executed pursuant to s. 742.15 and that at least one member of the commissioning couple is the genetic parent of the child, the court shall enter an order stating that the commissioning couple are the legal parents of the child. (7) When at least one member of the commissioning couple is the genetic parent of the child, the commissioning couple shall be presumed to be the natural parents of the child. (8) Within 30 days after entry of the order, the clerk of the court shall prepare a certified statement of the order for the state registrar of vital statistics on a form provided by the registrar. The court shall thereupon enter an order requiring the Department of Health to issue a new birth certificate naming the commissioning couple as parents and requiring the department to seal the original birth certificate. (9) All papers and records pertaining to the affirmation of parental status, including the original birth certificate, are confidential and exempt from the provisions of s. 119.07(1) and subject to inspection only upon order of the court. The court files, records, and papers shall be indexed only in the name of the petitioner, and the name of the child shall not be noted on any docket, index, or other record outside the court file. History.—s. 2, ch. 93-237; s. 416, ch. 96-406; s. 115, ch. 97-237.



Thank you very much. Very helpful!


You should definitely seek legal counsel to draw up the appropriate paperwork. Please feel free to contact my Orlando office during regular business hours at 407-354-5223. I offer a free consultation and would be happy to speak to you. Congratulations by the way, what a very exciting time for you!

You should consult an attorney for advice regarding your individual situation since every case is different and not all information is relayed in an online question. The Law Office of Ophelia Bernal-Mora, P.A. is a family & criminal law firm located in Orlando, Florida, we invite you to contact us and welcome your calls at 407-354-5223. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.