By William D. Slicker
In 1993, Florida added surrogacy sections to its chapter on paternity. The surrogacy provisions provide that: (1) there must be a written contract between the surrogate and the commissioning couple, (2) the mother cannot physically carry a pregnancy to term or a pregnancy would cause a risk to the health of the fetus, and (3) only the surrogate shall have sole right to decide medical interventions related to the pregnancy[1]. The surrogacy provisions have been interpreted as including a same sex couple as a commissioning couple.[2]
In 2026, Florida passed HB 905 which prohibits adoption or surrogacy if a party to the contract is from China, Russia, Iran, North Korea, Cuba, Venezuela, or Syria.[3] In support of the bill, the sponsor of the bill, Rep. Jenna Persons-Mulicka, had cited to a Chinese billionaire who reportedly had over 100 children born in the United States via surrogacy.[4]
Presently, in 2026, there is an ongoing case attacking surrogacy as unconstitutional. In 2025, two men living in France contracted with a woman living in Florida to carry their child. As the due date approached, the fathers-to-be petitioned for parental rights.[5] The trial judge granted the petition but went on to suggest that surrogacy may be unconstitutional on the premise that if children are entitled to personhood, that they cannot be subject to an ownership contract.[6]
Florida’s Attorney General Uthmeier became aware of the case (which is normally confidential) and he has filed to intervene in the case. He is arguing that surrogacy is like slavery and therefore it violates the Thirteenth Amendment. He argues that treating children as property makes the surrogacy contracts null and void.[7]
The case is presently on appeal before the Fourth District Court of Appeal. Stay tuned for an opinion that will probably be subject to further appeal.
[1] Sec. 742.15, Fla. Stat.
[2] D.M.T. v. T.M.H., 129 So. 3d 320 (Fla. 2013)
[3] Goni-Lessan, Ana, DeSantis signs bill restricting foreign influence from ‘countries of concern’, WLRN (May 11, 2026) https://www.wlrn.org/government-politics/2026-05-11/desantis-signs-bill-restricting-foreign-influence-from-countries-of-concern.
[4] Goni-Lessan, supra.
[5] Ellenbogen, Romy, Florida AG says surrogacy is human trafficking, Miami Herald (May 8, 2026) https://www.miamiherald.com/news/politics-government/state-politics/article315673958.html
[6] Ellenbogen, supra.
[7] Stern, Florida’s Attorney General is Fighting to Outlaw Surrogacy, Slate (May 13, 2026).
