As society is facing fertility challenges, assisted reproductive technology is on the rise. Shumaker helps intended parents of all backgrounds create their own families.
Our attorneys have personal experience with surrogacy and infertility and as a result, understand the legal complexities surrounding surrogacy. We are intensely aware that contracts must be thoroughly drafted in order to avoid legal issues arising during the course of the surrogacy or after the child’s birth. To protect your rights in these complex legal proceedings, it is important that the rights and obligations of each party are carefully considered, negotiated, and contracted by an experienced attorney. Our team navigates the legal challenges of this evolving field to protect your interests.
While many countries and some states prohibit surrogacy, Florida is a surrogacy friendly state. We represent domestic and international clients in gestational surrogacy agreements and preplanned adoptions, as well as egg, sperm, and embryo donations. Our firm is proud to work with all types of families without regard to gender, sexual orientation, nationality, marital status, race, etc.
A valid gestational surrogacy contract must comply with the Florida Statute §742.15’s stringent procedural requirements and may be entered into only by parties who are 18 years or older and by legally married intended parents. If an unmarried same-sex couple or individual wishes to create their family with the assistance of a gestational surrogate, it is important to enter into a Preplanned Adoption Agreement, which is governed by Florida Statute §63.213. These contracts are necessary to allow the intended parents to obtain a birth certificate establishing parental rights.
Our attorneys provide customized representation to ensure your rights are protected. Since surrogacy laws vary by state, state surrogacy laws will govern any pre-birth and post-birth legal processes. Our attorney’s do not just explain these local surrogacy laws to you — they follow up to make sure that your process adheres to them. This includes filing any necessary legal paperwork to protect your surrogacy’s legal integrity, communicating with your medical professionals to make sure they follow legal surrogacy standards and providing the reproductive endocrinologist with legal clearance to initiate the transfer of embryos.
An important part of your surrogacy attorney’s services to you includes drafting and finalizing a surrogacy contract, which must be done before the attorney can provide the required legal clearance so the medical processes can begin. Intended parents and surrogates will need separate surrogacy lawyers for this part of the legal process, as their rights and interests must be independently protected to create an equitable surrogacy journey. Our attorneys are experienced in representing intended parents as well as surrogates and will help you understand the process from compensation, expectations and responsibilities for both parties to the establishment of parental rights for the intended parents as early as possible. We will review sensitive issues like termination and selective reduction, risks and liabilities and custody of the child born via surrogacy.
Many countries do not permit surrogacy and lack national standards, medical advances, and legal protections the United States offers. Even intended parents who do not reside in the United States or Florida, can take advantage of the legal protections of Florida law. Florida law protects the intended parents, your embryos, the surrogate, and your future children. Laws of foreign countries may present additional obstacles for the intended parents, even if both parents are named on the birth certificate. Shumaker will work closely with attorneys retained by our clients in their home countries to help ensure a seamless transition home. Our full support includes preparing additional legal provisions for your surrogacy and/or donor agreements; researching birth certificate requirements in your home country; and assisting you with obtaining apostilled documents and a U.S. passport for your newborn child and your return home. We will ensure that high-quality interpreters are able to assist during reviews of contracts and parental establishment documents when needed.
We are proud supporters of the LGBTQ+ community and are actively involved in various philanthropic organizations. Since the 2015 United States Supreme Court’s ruling on marriage equality, the surrogacy and pre-planned adoption processes are far more readily available to same-sex couples. Despite this progress, LGBTQ+ parents can face a more complicated legal landscape than straight parents. Legal concerns for LGBTQ+ people are generally impacted by the state in which you reside, your preferred path to parenthood, and your relationship status. Other states and foreign countries, however, may present additional obstacles for the intended parents, even if both parents are named on the birth certificate.
At Shumaker we ensure the process is legal, safe, and ethical. It is our goal to provide a comfortable surrogacy journey for all intended parents, regardless of their country of residence.
Implications for Cancer Survivors
Various cancers and cancer treatments can affect the reproductive process. As cancer survivors, our attorneys relate to your fertility issues. While much of the focus in the new field of oncofertility has been on preserving cancer patients’ fertility, the preservation and use of frozen eggs, sperms, embryos, or ovarian tissue following cancer treatment is becoming increasingly more important. With and without preserved genetic material, surrogacy is a viable option for cancer survivors.
Preplanned Adoption Agreements
Preplanned adoption agreements provide unmarried couples and individuals with the opportunity to create their own family. This legal mechanism allows you to secure parentage of a child born through surrogacy. Preplanned adoption agreements do not require that the intended parent(s) is/are biologically related to the child, but rather is the legal proceeding where the “voluntary mother” agrees to carry the intended parent(s) child. This process requires court approval and is governed by Florida Statute §63.213. If the birth mother is genetically related to the child, she has the ability to rescind her consent to the adoption within 48 hours after the birth of the child.
Second-Parent Adoption Agreements
The second-parent adoption or co-parent adoption is a process by which a spouse can adopt her or his partner’s biological or adoptive child without terminating the first legal parent’s rights. This process is appealing to many couples, as it provides legal protections to the child and both partners. Formalizing adoption agreements allows both partners to make medical decisions, gain custody in the event of the death of the biological parents, and ensure the child will continue to receive financial support and a relationship with the second parent should the parents separate. A second-parent adoption also provides the child with the rights to benefits such as health and life insurance.
Egg Donation Agreement
Egg donation is a form of Assisted Reproductive Technology in which a woman provides her eggs to intended parents for use in an in vitro fertilization (IVF). An egg donor provides a healthy egg to create an embryo using either donor sperm or sperm from an intended father. That embryo is transferred to an intended mother or a surrogate.
The contract formalizes how an egg donor relinquishes her rights and how the intended parents will become the legal parents of the child. An egg donation agreement also provides the intended parents with a mechanism to obtain the egg donor’s necessary medical information in accordance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The agreement further outlines how and when egg retrieval will occur, how expenses and compensation will be handled, and describes how intended parents will cover the donor’s medical insurance in the event of a medical complication. As experienced attorneys we are equipped to navigate you through the legal complexities of the egg donation agreement so that all parties are protected, whether yours is a known or an anonymous donor arrangement.
Known sperm donors may or may not have parental rights and obligations, depending on the legal steps taken up in the signing of the sperm donor contract. When a known sperm donor is used for conception, it is important that each party consult their own attorney to draft an agreement that defines the rights of all parties involved in relation to the future child. Florida Statutes state that the donor of any sperm, other than the commissioning couple or a father who has executed a preplanned adoption agreement, must relinquish all paternal rights. It is also important that a licensed physician perform the insemination to best ensure enforceability of the contract.
Approximately 10 percent of couples will not use their cryopreserved embryos. Unused embryos leftover from in vitro fertilization (IVF) processes will remain frozen in storage, destroyed, or donated. Embryo Donation is a form of Assisted Reproductive Technology in which previously formed embryos are donated to potential intended parents or, in some cases, to scientific research. The process of embryo donation, also sometimes referred to as embryo adoption, is legally complex. Donations can be known or anonymous.