Gestational Surrogacy Contracts :-)

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 20, 2012.

According to the Associated Press, on Sept. 19, 1982, the smiley emoticon was invented by professor Scott E. Fahlman, who proposed punctuating humorous computer messages by creating this:


Which of course led to this

🙂 🙂 :] =] =) :^) :?), and sadly, this 🙁 🙁 :-c :-< :-[ :[ :{

Just as new technologies – such as reproductive technologies – bring new benefits, they can bring new types of child custody cases. Consider this English woman’s concerns reported in the Daily Mail:

A married woman whose husband donated sperm without her knowledge is calling for clinics to be forced to ask for a wife’s consent . . . and says the sperm should be treated as a ‘marital asset’.

Putting aside the question of whether sperm is marital property, Florida does protect surrogacy, and has comprehensive laws protecting the baby, intended parents, the egg donor and the surrogate.

For example, Florida allows commissioning couples to enter gestational surrogacy contracts in which a surrogate relinquishes her parental rights. Gestational surrogacy contracts are reviewed by courts to confirm that they are in accordance with Florida law, and for a birth certificate to be issued. But, problems can arise. Consider a recent Florida case involving lesbian partners:

Two women decided to have a baby, paid a reproductive doctor to withdraw ova from one of them, fertilize them, and implant the fertilized ova into the other partner. The procedure worked, and a child was conceived to a birth mother and a biological mother. Two years later the mothers separated, and the birth mother severed the biological mother’s contact with the child.

If the biological mom is simply an egg donor under Florida law, her parental rights are relinquished. If she isn’t a donor, she’s entitled to parental rights. So, what are the biological mom’s rights? At least in one Florida case, the biological mom was found to be entitled to her parental rights, and did not statutorily relinquish them.

The outcome in that one Florida appellate case may not be followed in other appellate districts, so a consultation with a family law expert is advised.