This article will briefly discuss the parentage for same sex couples.
Imagine that Sally and Jane Smith were married last year in Florida. The couple decides they would like to start a family. Sally gets pregnant through artificial or in vitro insemination and 9 months later, Sally and Jane rush to the hospital and Sally gives birth to Baby Smith. Now imagine Jane’s horror when the hospital administrator tells that them that only Sally’s name is to appear on the baby’s birth certificate as “Mother” and that the remaining slot for the other parent’s name is to be left blank. That is how this worked until quite recently.
Florida Statute §742.11 governs the legal parentage of children born through artificial or in vitro insemination. The statute provides that “any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife…”. The statute specifically says “husband and wife”, which is why Jane’s name could not appear on baby Smith’s birth certificate. Fortunately, that rule changed in 2015 when, in light of the recognition of same sec marriages and the need to protect children of a same sex couple, a Court in Palm Beach County interpreted “husband” to mean the spouse of the child-bearing wife. Now, when a child is born of a same sex, married couple, both spouses’ names may appear on the child’s birth certificate.
In fact, the Department of Vital Statistics will now issue amended birth certificates for children born before 2015 to married, same sex couples, so that the names of both spouses will appear on the amended birth certificate.
In the case of married, same sex couples, putting both spouses’ names on the birth certificate is simply a basic constitutional protection that is now afforded to same sex couples. It is a voluntary acknowledgment that both spouses are the legal parents of the child. However, in the case of non-married, opposite sex couples, the significance of having two names on the birth certificate creates a presumption of paternity for the male. Paternity is defined as the state of being someone’s father. When a child is conceived outside of wedlock, the mother is the child’s natural guardian and she has sole custody of the child. A paternity action must be brought to determine the legal father and to grant the father rights to his child.
When neither spouse can or will actually carry the baby in her body, the couple must go through gestational surrogacy. Florida Statute §742.15 governs gestational surrogacy contracts. The statute is gender neutral and provides that “prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate.” A gestational surrogacy contract provides that the gestational surrogate relinquishes her parental rights upon the child’s birth, and that the commissioning couple agrees to accept custody and assume full parental rights of the child.
If the commissioning same sex couple is not married, the gestational surrogacy contract should include a preplanned adoption provision so that both parties are the legal parents of the child.
Thanks to science, modern medicine and forward thinking legislatures, basic constitutional protections, such as the right for same sex couples to have a child or to be listed on their child’s birth certificate, are now afforded to same sex couples in Florida.
Obviously, the legal implications and technical requirements of Florida Statutes governing these issues is complex and representation by a qualified attorney is necessary.