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What rights do I have over an embryo carried through surrogacy?

As more Americans are plagued by infertility, alternatives like surrogacy give couples who previously thought they were out of options the chance to build a family.

Surrogacy may make some couples a bit nervous to have someone else in more control of the pregnancy. Fears may include whether or not a surrogate can walk away and take the baby with her. Who has the legal right over the embryo - the genetic parents or the carrier?

Gestational vs. traditional surrogacy

The answer to that question ultimately relies on the type of surrogacy chosen. There are two types of surrogacy legal in Florida: gestational and traditional. Gestational surrogacy is when the surrogate carries an embryo to term that uses the genetic material of both intended parents (the sperm and egg). Traditional surrogacy is when the surrogate's egg is fertilized with the intended birth father's sperm.

In compliance with Florida law, a gestational surrogate is not the biological parent and therefore has no legal right to the child following birth. This also protects the surrogate, as the intended parents cannot force the surrogate to parent the child.

In traditional surrogacy, either the surrogate or the intended parents may rescind the consent and terminate the agreement up to 48 hours following birth. That means a birth mother does have the right to change her mind and keep the baby, and the parents

Surrogacy agreements

The legal rights of all parties are protected and directed by a surrogacy agreement. Florida law requires individuals considering either type of surrogacy to enter into a surrogacy agreement, which is binding and enforceable upon its signature. The commissioning couple must be 18 years or older and married, and the surrogate must be 18 years or older.

    There are several provisions the agreement must contain, including medical consent, medical evaluation and treatment, and the parental and custodial rights for the child upon birth. 

    Working with a professional on these decisions to ensure the terms are met by all parties throughout the pregnancy can lead to a beautiful outcome for surrogates who are able to give an amazing gift to a family and to infertile couples who eventually have a newborn baby to take home.

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