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Artificial Reproductive Technology, In Vitro Fertilization, and Gestational Surrogacy

Artificial reproductive technology or assisted reproductive technology includes those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in Vitro fertilization embryo transfer, gamete intrafallopian transfer, pro-nuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.

Under Florida Statute 742.11, there is an irrebuttable presumption of parentage for any child born within wedlock who has been conceived by the means of artificial or in Vitro insemination. The child is irrebuttably presumed to be the child of the husband and wife, provided that both the husband and wife have consented in writing to the artificial or in vitro insemination.

The one exception to the irrebuttable presumption of parentage is in the case of gestational surrogacy.

The Florida Constitution specifically mandates that the courts of this state interpret chapter 742.14 in a gender neutral way. This means that same-sex partners have the same rights as a married husband and wife. Any attempts to limit Florida Statute 742 to a married husband and wife would violate the equal protection clause of the Florida as well the United States Constitution.

Under Florida law, a sperm donor is prohibited from seeking to establish paternity. This would be true even if the sperm donor contract is ultimately deemed to be void.

In order to be considered as a sperm donor, there must be a written contract, and the conception must occur in an artificial manner pursuant to Florida Statute 742. You can’t be a sperm donor if you impregnate a woman in the usual and customary manner.

The donation of sperm, between a sperm donor and the recipient, must be in writing and contain the following elements:

  1. The agreement must clearly state the donor’s intent not to parent any children which result from his donation of sperm.
  2. The agreement must also clearly state the donor’s immediate, irrevocable and unconditional surrender of sperm or pre-embryo to the recipient intended parents. The donor’s surrender must clearly provide for surrender of all legal rights and responsibilities to any resulting children. The agreement should be signed by all parties in the presence of two (2) witnesses, along with a notary.
  3. The intended method of conception should also be stated in the agreement. The method must be an artificial method. Any attempt to donate sperm in the traditional manner will avoid the agreement.
  4. If the recipient knows the donor, the donor recipient agreement should also clearly state that any contact with the donor will not void the agreement.
  5. Provision should be made for waiver of liability as well as medical insurance to cover any medical complications of the donor.
  6. The donor recipient agreement should also provide for reasonable compensation to the donor, and the compensation should not be contingent upon the outcome of the donation.
  7. Any unused genetic material should be disposed of and not returned to the donor, otherwise the agreement may become void.
  8. Both the donor and the recipients should have their own independent lawyers representing and advising them.

A Gestational Surrogacy arrangement must also be in writing. There are certain prerequisites to these arrangements:

  1. The gestational surrogate must be over 18 years of age.
  2. The commissioning couple must be legally married, and the courts must apply a gender neutral interpretation to this provision.
  3. An opinion of a physician licensed in the State of Florida must also be obtained. The opinion must state that the intended mother cannot physically gestate a pregnancy to term; that gestation will risk the intended mother’s health or the gestation will risk the fetus’ health.

Florida Statute 742.15(3) requires that all of the following be contained in a written contract between the parties, as follows:

  1. The commissioning couple agrees that the gestational surrogate is the sole source of consent with respect to clinical intervention and management of the pregnancy.
  2. The gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.
  3. The gestational surrogate agrees to relinquish any parental rights upon the child’s birth and to proceed with the judicial proceedings prescribed in Florida Statute 742.16, unless testing establishes that neither member of the commissioning couple is a genetic parent of the child.
  4. The commissioning couple agrees to accept custody and to assume full parental rights and responsibilities for the child immediately upon the child’s birth, regardless of any impairment of the child, unless testing establishes that neither member of the commissioning couple is the child’s genetic parent.
  5. 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.
  6. The commissioning couple must agree to pay only reasonable living, legal, medical, psychological and psychiatric expenses of the gestational surrogate directly related to the prenatal, intrapartal and postpartal periods.
  7. Neither party may terminate the agreement after the pregnancy is diagnosed.
  8. No final consent is required from the gestational surrogate or her husband after the birth of the child.
  9. The agreement should also contain the number of artificial reproductive technology cycles the parties intend and the number of embryos the gestational surrogate consents to being transferred to her.
  10. The agreement should provide for psychological evaluation and counseling.
  11. An important provision should include the gestational surrogate’s agreement on invasive prenatal testing, selective reduction, and termination of the pregnancy.
  12. Any escrow agreements.
  13. Medical and health insurance and life insurance for the gestational surrogate.
  14. A designated guardian of the child in the event of the premature death of the commissioning couple.

A preplanned adoption, also known as a traditional surrogacy, is governed by the provisions of Florida Statute 63.213. This arrangement usually requires a person or two unmarried persons who wish to adopt, contract with a volunteer mother using the volunteer mother’s egg and the biological sperm of one of the intended parents. The mother signs a preconception consent for adoption simultaneously with the execution of her agreement with the intended parents, but she has 48 hours after the child’s birth to rescind her consent for adoption. As one can readily see, this is an extremely risky type of venture.

The 48 hour rescission period only applies to a volunteer mother who has a biological connection to the child. This area of the law is complicated, and he involving. Contact an attorney who has experience and knowledge to effectively represent you in these types of cases. Contact Alan R Burton Esq. at (954) 295-9222. Mr. Burton maintains offices in Boca Raton and Fort Lauderdale, Florida and he is available to consult with you today.

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