The Inconsistencies of Florida Law in Single Women Surrogacy Cases

Anyone who has dealt with surrogacy cases will be aware of how complex this element of reproductive law can be. However, when it comes to single women wishing to use a surrogate to have a baby, it’s even more complicated. In Florida law, a single woman can use a surrogate to have a child. However, legally, her name cannot be on the baby’s birth certificate as the biological mother. Married women in the same situation, conversely, can appear as the biological mother on the birth certificate. This is a major inconsistency in Florida law, which we will look at more closely in this article.

How Does Surrogacy Work Under Florida Law?

Surrogacy laws vary dramatically across all 50 states. Florida’s laws regarding surrogacy are restrictive when compared with those of some other states, such as California. However, when compared with some other areas, such as Washington, D.C, they are relatively relaxed.

There are two types of surrogacy, each of which has its own statute to govern it under the law. The first is gestational surrogacy. In this type, in vitro fertilization of the egg occurs, and, then, a doctor places it inside the surrogate’s uterus. The second is traditional surrogacy, which involves fertilizing the egg inside the surrogate mother using sperm from the biological father. Only 5 percent of surrogacies are now carried out in this way as gestational surrogacy is more popular.

Florida Statute Chapter 742 governs gestational surrogacy. This statute requires the surrogate and prospective couple to establish a contract. This “commissioning couple” must be legally married, and the commissioning mother must be unable to carry her child. The contract, among other things, will enshrine in law the gestational surrogate’s agreement to relinquish parental rights to the couple. The commissioning mother who donates her egg to the surrogate can, then, be the biological mother on the birth certificate. This raises a major issue for single women using gestational surrogacy to have a child that is biologically theirs.

Under Florida law, a single woman can use donated sperm to impregnate herself. She can, then, legally have her name on the birth certificate as the child’s biological mother. However, she cannot if she uses the same donated sperm and her egg but implanted inside a surrogate mother. This is a bizarre inconsistency in the law. 

Creating A Pre-Pregnancy Agreement

The law makes little sense in this respect. Yet, there is nothing a single woman can do to change it. A single woman can still use donated sperm and her egg to facilitate gestational surrogacy in Florida. She must take a few extra steps to have her name on the birth certificate as the birth mother, though.

Single women and their surrogates must make a pre-pregnancy agreement. When the child is born, the surrogate’s name will be on the birth certificate as the biological mother. The single woman must adopt the baby, and, then, the courts can amend the birth certificate. It will, then, show the single woman as the baby’s mother. While this is a bizarre approach to have to take, single women have little choice. If they wish to use a surrogate, they must jump through the hoops to get their names on birth certificates. This is likely to be the case for the foreseeable future until the law catches up with the modern world.

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