State Laws and Legislation

Florida Surrogacy Law

Summary: Florida law explicitly allows both gestational surrogacy agreements (in which the surrogate mother is not the biological contributor of the egg) and traditional surrogacy agreements (in which the surrogate mother is the biological contributor of the egg), but neither is available to same-sex couples.

Explanation: Florida gestational surrogacy statutes impose strict requirements on the contracts, among them limiting involvement to “couple[s that] are legally married and are both 18 years of age or older.” The law governing traditional surrogacy arrangements, which are referred to as “pre-planned adoption agreements,” connects those contracts to state adoption law. Additionally, Florida law explicitly prohibits “homosexuals” from adopting. In 2004, this law was upheld in federal court by the 11th Circuit Court of Appeals in the case of Lofton v. Kearney.

In the 2000 case of Lowe v. Broward County, a Florida District Court of Appeals noted that the right to enter into surrogate-parenting agreements is reserved for married couples only and is one of the many rights that domestic partners are denied. While the ruling concerned only the Broward County Domestic Partnership Act, it is possible that Florida courts could interpret other county domestic partnership laws in a similar way.

In 2006, a case was brought by an individual seeking parental rights over two children who were conceived and delivered by her former domestic partner (Wakeman v. Dixon) . Despite the fact that the former partners had entered an agreement relating to parental rights, a Florida District Court of Appeals held that, “absent evidence of detriment to the child,” the Court had no power to recognize the agreement, grant custody, or compel visitation to a non-natural parent. Although Wakeman did concern a surrogacy agreement, the case exemplifies the unwillingness of the Florida courts to recognize same-sex couples as parents.

Citations: FLA. STAT. § 63.212 (2009); FLA. STAT. §§ 742.11-16 (2009); Lofton v. Kearney, 358 F. 3d 804 (11th Cir. 2004); Lowe v. Broward County, 766 So. 2d 1199 (Fla. Dist. Ct. App. 2000); Wakeman v. Dixon, 921 So. 2d 669 (Fla. Dist. Ct. App. 2006).