The Florida Senate

63.212  Prohibited acts; penalties for violation.--

(1)  It is unlawful for any person:

(a)  Except the department, an intermediary, or an agency, to place or attempt to place a child for adoption with a person who primarily lives and works outside this state unless the child is placed with a relative within the third degree or with a stepparent. An intermediary may place or attempt to place a special needs child for adoption with a person who primarily lives and works outside this state only if the intermediary has a declaratory statement from the court establishing the fees to be paid. This requirement does not apply if the child is placed with a relative within the third degree or with a stepparent.

(b)  Except the department, an intermediary, or an agency, to place or attempt to place a child for adoption with a family whose primary residence and place of employment is in another state unless the child is placed with a relative within the third degree or with a stepparent. An intermediary may place or attempt to place a special needs child for adoption with a family whose primary residence and place of employment is in another state only if the intermediary has a declaratory statement from the court establishing the fees to be paid. This requirement does not apply if the child is placed with a relative within the third degree or with a stepparent.

(c)  Except the Department of Children and Family Services, an agency, or an intermediary, to place or attempt to place within the state a child for adoption unless the child is placed with a relative within the third degree or with a stepparent. This prohibition, however, does not apply to a person who is placing or attempting to place a child for the purpose of adoption with the Department of Children and Family Services or an agency or through an intermediary.

(d)  To sell or surrender, or to arrange for the sale or surrender of, a child to another person for money or anything of value or to receive such minor child for such payment or thing of value. If a child is being adopted by a relative within the third degree or by a stepparent, or is being adopted through the Department of Children and Family Services, an agency, or an intermediary, nothing herein shall be construed as prohibiting the person who is contemplating adopting the child from paying the actual prenatal care and living expenses of the mother of the child to be adopted, nor from paying the actual living and medical expenses of such mother for a reasonable time, not to exceed 6 weeks, if medical needs require such support, after the birth of the child.

(e)  Having the rights and duties of a parent with respect to the care and custody of a minor to assign or transfer such parental rights for the purpose of, incidental to, or otherwise connected with, selling or offering to sell such rights and duties.

(f)  To assist in the commission of any act prohibited in paragraph (a), paragraph (b), paragraph (c), paragraph (d), or paragraph (e).

(g)  Except the Department of Children and Family Services or an agency, to charge or accept any fee or compensation of any nature from anyone for making a referral in connection with an adoption.

(h)  Except the Department of Children and Family Services, an agency, or an intermediary, to advertise or offer to the public, in any way, by any medium whatever that a child is available for adoption or that a child is sought for adoption; and further, it is unlawful for any person to publish or broadcast any such advertisement without including a Florida license number of the agency, attorney, or physician placing the advertisement.

(i)  To contract for the purchase, sale, or transfer of custody or parental rights in connection with any child, or in connection with any fetus yet unborn, or in connection with any fetus identified in any way but not yet conceived, in return for any valuable consideration. Any such contract is void and unenforceable as against the public policy of this state. However, fees, costs, and other incidental payments made in accordance with statutory provisions for adoption, foster care, and child welfare are permitted, and a person may agree to pay expenses in connection with a preplanned adoption agreement as specified below, but the payment of such expenses may not be conditioned upon the transfer of parental rights. Each petition for adoption which is filed in connection with a preplanned adoption agreement must clearly identify the adoption as a preplanned adoption arrangement and must include a copy of the preplanned adoption agreement for review by the court.

1.  Individuals may enter into a preplanned adoption arrangement as specified herein, but such arrangement shall not in any way:

a.  Effect final transfer of custody of a child or final adoption of a child, without review and approval of the department and the court, and without compliance with other applicable provisions of law.

b.  Constitute consent of a mother to place her child for adoption until 7 days following birth, and unless the court making the custody determination or approving the adoption determines that the mother was aware of her right to rescind within the 7-day period following birth but chose not to rescind such consent.

2.  A preplanned adoption arrangement shall be based upon a preplanned adoption agreement which shall include, but need not be limited to, the following terms:

a.  That the volunteer mother agrees to become pregnant by the fertility technique specified in the agreement, to bear the child, and to terminate any parental rights and responsibilities to the child she might have through a written consent executed at the same time as the preplanned adoption agreement, subject to a right of rescission by the volunteer mother any time within 7 days after the birth of the child.

b.  That the volunteer mother agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.

c.  That the volunteer mother acknowledges that she is aware that she will assume parental rights and responsibilities for the child born to her as otherwise provided by law for a mother, if the intended father and intended mother terminate the agreement before final transfer of custody is completed, or if a court determines that a parent clearly specified by the preplanned adoption agreement to be the biological parent is not the biological parent, or if the preplanned adoption is not approved by the court pursuant to the Florida Adoption Act.

d.  That an intended father who is also the biological father acknowledges that he is aware that he will assume parental rights and responsibilities for the child as otherwise provided by law for a father, if the agreement is terminated for any reason by any party before final transfer of custody is completed or if the planned adoption is not approved by the court pursuant to the Florida Adoption Act.

e.  That the intended father and intended mother acknowledge that they may not receive custody or the parental rights under the agreement if the volunteer mother terminates the agreement or if the volunteer mother rescinds her consent to place her child for adoption within 7 days after birth.

f.  That the intended father and intended mother may agree to pay all reasonable legal, medical, psychological, or psychiatric expenses of the volunteer mother related to the preplanned adoption arrangement, and may agree to pay the reasonable living expenses of the volunteer mother. No other compensation, whether in cash or in kind, shall be made pursuant to a preplanned adoption arrangement.

g.  That the intended father and intended mother agree to accept custody of and to assert full parental rights and responsibilities for the child immediately upon the child's birth, regardless of any impairment to the child.

h.  That the intended father and intended mother shall have the right to specify the blood and tissue typing tests to be performed if the agreement specifies that at least one of them is intended to be the biological parent of the child.

i.  That the agreement may be terminated at any time by any of the parties.

3.  A preplanned adoption agreement shall not contain any provision:

a.  To reduce any amount paid to the volunteer mother if the child is stillborn or is born alive but impaired, or to provide for the payment of a supplement or bonus for any reason.

b.  Requiring the termination of the volunteer mother's pregnancy.

4.  An attorney who represents an intended father and intended mother or any other attorney with whom that attorney is associated shall not represent simultaneously a female who is or proposes to be a volunteer mother in any matter relating to a preplanned adoption agreement or preplanned adoption arrangement.

5.  Payment to agents, finders, and intermediaries, including attorneys and physicians, as a finder's fee for finding volunteer mothers or matching a volunteer mother and intended father and intended mother is prohibited. Doctors, psychologists, attorneys, and other professionals may receive reasonable compensation for their professional services, such as providing medical services and procedures, legal advice in structuring and negotiating a preplanned adoption agreement, or counseling.

6.  As used in this paragraph, the term:

a.  "Blood and tissue typing tests" include, but are not limited to, tests of red cell antigens, red cell isoenzymes, human leukocyte antigens, and serum proteins.

b.  "Child" means the child or children conceived by means of an insemination that is part of a preplanned adoption arrangement.

c.  "Fertility technique" means artificial embryonation, artificial insemination, whether in vivo or in vitro, egg donation, or embryo adoption.

d.  "Intended father" means a male who, as evidenced by a preplanned adoption agreement, intends to have the parental rights and responsibilities for a child conceived through a fertility technique, regardless of whether the child is biologically related to the male.

e.  "Intended mother" means a female who, as evidenced by a preplanned adoption agreement, intends to have the parental rights and responsibilities for a child conceived through a fertility technique, regardless of whether the child is biologically related to the female.

f.  "Parties" means the intended father and intended mother, the volunteer mother and her husband, if she has a husband, who are all parties to the preplanned adoption agreement.

g.  "Preplanned adoption agreement" means a written agreement among the parties that specifies the intent of the parties as to their rights and responsibilities in the preplanned adoption arrangement, consistent with the provisions of this act.

h.  "Preplanned adoption arrangement" means the arrangement through which the parties enter into an agreement for the volunteer mother to bear the child, for payment by the intended father and intended mother of the expenses allowed by this act, for the intended father and intended mother to assert full parental rights and responsibilities to the child if consent to adoption is not rescinded after birth by the volunteer mother, and for the volunteer mother to terminate, subject to a right of rescission, in favor of the intended father and intended mother all her parental rights and responsibilities to the child.

i.  "Volunteer mother" means a female person at least 18 years of age who voluntarily agrees, subject to a right of rescission, that if she should become pregnant pursuant to a preplanned adoption arrangement, she will terminate in favor of the intended father and intended mother her parental rights and responsibilities to the child.

(2)  Nothing herein shall be construed to prohibit a licensed child-placing agency from charging fees reasonably commensurate to the services provided.

(3)  It is unlawful for any intermediary to fail to report to the court, prior to placement, the intended placement of a child for purposes of adoption with any person not a stepparent or a relative within the third degree, if the intermediary participates in such intended placement.

(4)  It is unlawful for any intermediary to charge any fee over $1,000 and those costs as set out in paragraph (1)(d) over $2,500, other than for actual documented medical costs, court costs, and hospital costs unless such fee is approved by the court prior to the assessment of the fee by the intermediary and upon a showing of justification for the larger fee.

(5)  It is unlawful for any intermediary to counsel a birth mother to leave the state for the purpose of giving birth to a child outside the state in order to secure a fee in excess of that permitted under s. 63.097 when it is the intention that the child be placed for adoption outside the state.

(6)  It is unlawful for any intermediary to obtain a preliminary home study or final home investigation and fail to disclose the existence of the study to the court.

(7)  A person who violates any provision of this section, excluding paragraph (1)(h), is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person who violates paragraph (1)(h) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083; and each day of continuing violation shall be considered a separate offense.

History.--s. 21, ch. 73-159; s. 13, ch. 75-226; s. 25, ch. 77-147; s. 1, ch. 77-174; s. 9, ch. 78-190; s. 6, ch. 80-296; s. 5, ch. 84-101; s. 8, ch. 87-224; s. 10, ch. 87-397; s. 1, ch. 88-143; s. 3, ch. 90-55; s. 23, ch. 90-306; s. 22, ch. 92-96; s. 13, ch. 97-101.