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Do Gestational Surrogates Have Parental Rights?


Since the first reported child conceived from a cryopreserved embryo was born in 1984, courts have been grappling with how to define paternity and parental rights in light of scientific innovation. Fortunately, a few years ago, the Florida Legislature enacted provisions that specifically apply to paternity-related issues in situations that involve in vitro fertilization. To learn more about how these laws could affect your own parental rights and responsibilities, please contact a child custody attorney who has the experiences and resources to assist you.

Presumed Status  

When it comes to the status of a child who resulted from artificial insemination in Florida, he or she will automatically be presumed to be the offspring of the husband of the child’s mother, but only if both spouses consent to the in vitro insemination in writing beforehand. Similarly, any child born to a married couple that was conceived via donated eggs or pre-embryos is presumed to be the child of the recipient gestating woman and her spouse. The only exception to this irrebuttable presumption is in cases of gestational surrogacy.

The donors of any eggs, sperm, or pre-embryos also automatically relinquish their maternal and paternal rights and obligations to any child conceived with those donations. The only time these rights are not relinquished is if the donor is one of a commissioning couple or a father who has executed a preplanned adoption agreement.

Gestational Surrogacy Contracts  

In an effort to avoid potential conflicts about parental rights, the Florida Legislature also instituted requirement for gestational surrogacy contracts. These agreements, which are binding and enforceable, are made between a commissioning couple and the gestational surrogate who will carry the child. However, these agreements are only considered binding if the commissioning parties are legally married. Furthermore, a couple cannot enter into an agreement unless a licensed physician determines that:

  • The commissioning mother is unable to physically carry a child to term;
  • The pregnancy would cause a risk to the health of the commissioning mother; or
  • The pregnancy would put the health of the fetus at risk.

Once a child is actually born, the commissioning couple has three days after the child’s birth to petition the court for an affirmation of parental status. As long as a surrogacy agreement was properly executed and at least one member of the commissioning couple is the genetic parent of the child, a couple will be presumed to be the child’s natural parents and granted a new birth certificate reflecting the presumption.

Contact Our Child Custody Legal Team Today 

To speak with experienced Fort Lauderdale child custody attorney Sandra Bonfiglio, P.A. about your own surrogacy-related questions and concerns, please call 954-945-7591 today.



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