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Addressing Key Issues in Assisted Reproductive Technology Agreements


Technology and modern advancements in medicine are making it possible for individuals who were once unable to have children of their own to have, well, children of their own. Assisted Reproductive Technology, or ART, such as artificial insemination, surrogacy, and in vitro fertilization, give couples the opportunity to have a child that is genetically related without actually creating the child themselves. From same-sex couples to heterosexual couples with fertility issues, more families than ever are taking advantage of the wonders of technology to bear offspring, which is wonderful, but it also poses some legal issues that were a non-issue ten or twenty years ago.

At the office of Edward J. Jennings, P.A., we recognize that though ART is a miracle, it can cause complications between donors, surrogates, and families. If you and your spouse are interested in using ART to create your biological child, you need to be sure to have a foolproof contract in place. Our Fort Lauderdale family law attorneys can help you draft such a contract and ensure that, should a need ever arise, you are not without full parental rights.

Florida Law Regarding Sperm, Eggs, and Pre-embryos 

Unlike many other states, Florida has sufficient legislation in place regarding parentage and ART. Statutes 742.13, 742.11, and 742.17 all deal with determination of parentage and what should happen in certain circumstances, such as death or divorce. However, that does not mean that if you choose to go the ART route that you should not have sufficient contracts in place. For instance, Statute 742.17 states that, absent a written agreement, any decision-making authority regarding the disposition of pre-embryos shall reside jointly with the commissioning couple. However, what if the commissioning party decides to get divorced and one party of the couple wants to follow through with a surrogacy while the other does not. Whose decision wins out in such a situation?

Another situation that could arise is if one or both of the commissioning parties died prior to the child being born. Without a will that provides for the child, the child of the ART would not have any right to the decedent’s estate. If one commissioning party died, this could be unfortunate. However, if both commissioning parties were to pass away, the child would essentially be an orphan, and not having a will in place to provide for him or her could be devastating.

Gestational Surrogacy Agreement 

Under 742.11, any child born within wedlock who has been conceived via ART is presumed to be the child of the husband and wife provided that both husband and wife provided written consent, except in the case of gestational surrogacy. Additionally, any child born within wedlock who has been conceived by means of donated eggs or pre-embryos shall be presumed to be the child of recipient gestating woman and her husband provided that both parts have given written consent, except in the case of gestational surrogacy. If you and your spouse want to ensure that parental rights are yours and yours alone, and that the surrogate does not have any rights beyond carrying and birthing the child, you need to have a gestational surrogacy agreement in place. This agreement should outline the relationship between the gestational surrogate and the child post-birth, what should happen to the child in the event of a parental death, and all rights the intended parents have with regards to the fetus and the pregnancy (e.g. no smoking, no drinking, eat well). Additionally, the contract should include a waiver of parental rights for the gestational surrogate to sign.

On the same token, parents should consider drafting a sperm donor agreement. Though issues with sperm donors arise far less often than those with gestational surrogates, they do happen. Your sperm donor agreement should specify whether or not the donor will be identified to the child at a later date and if so, when that should take place. If you want the donor to waive his rights, you should include a waiver in the agreement as well.

Work With a Knowledgeable Family Law Attorney 

When a person agrees to ART, it can be difficult to imagine anything beyond the birth of the child. However, it is imperative that intended parents think about the consequences of not having a contract in place, and that they take all the proper measures to ensure full parental rights when their bundle of joy arrives. If you and your spouse are thinking about ART in order to have a child, reach out to the Fort Lauderdale family law attorneys at the office of Edward J. Jennings, P.A., to schedule a consultation today.





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