Florida AG says surrogacy is human trafficking, with big implications for families

TALLAHASSEE, Fla. – Last August, a married couple went before a Broward County court in what was expected to be a routine surrogacy case.

The couple, two men living in France, had contracted with a Florida woman in December to carry their child. As her due date approached, the fathers-to-be petitioned for early parental rights.

While the judge did grant the order, his opinion — and the involvement of Florida’s attorney general — set off a chain of events that could result in a dramatic reshaping of not only surrogacy law, but a range of reproductive issues in Florida.

Judge Marlon Weiss, going beyond what is typically required in such a case, suggested in his order that surrogacy may be unconstitutional. His ruling holds that if unborn children are entitled to personhood — which he implies is correct, citing legal articles in favor of that view — those children cannot be subject to an ownership contract.

In November, roughly 24 hours after the fathers told the court about the baby’s birth, Attorney General James Uthmeier began pushing to intervene in the case.

His office is arguing that surrogacy is akin to slavery, saying it violates the Thirteenth Amendment and should be deemed unconstitutional, according to a lawyer representing the family.

A case is now pending in front of the Fourth District Court of Appeals. The child has been with the fathers since birth and is not likely to be removed from their care.

This is not the first time Uthmeier, who was appointed by Gov. Ron DeSantis a little over a year ago, has injected himself into a normally uncontested court case. His office’s involvement in a 17-year-old’s request for an abortion last spring further whittled down Florida’s abortion access.

The fact that his office got wind of the surrogacy case is remarkable. The court didn’t ask him to intervene.

Surrogacy cases are confidential under Florida law. But when Weiss published his order, he wrote that his ruling was not confidential because it didn’t share identifying information about the child or parents. A month later, he submitted it as part of his application to be on Florida’s Fourth District Court of Appeal. And in December, the order was published in a law trade journal.

It’s not clear how Uthmeier’s office heard about the case. Uthmeier’s office declined to confirm or clarify its arguments to the Herald/Times, saying the case is confidential.

“Accordingly, the Attorney General is unable to comment on the specifics of this case, and any information you may have obtained could violate Florida law if shared,” Isabel Kilman, the deputy press secretary for the office, said in an email.

Katie Jay, an appellate and adoption attorney representing the fathers, said that she’s not accusing Weiss of sharing the case with Uthmeier’s office, saying she has no proof of that. But she added that trial judges don’t have the authority to unilaterally decide to publish opinions from confidential cases.

“What I am saying is that the conduct I can document — using a confidential parentage order as a writing sample for personal promotion — is troubling,” Jay said.

Jay declined to share the court records with the Herald/Times in the pending appeal, noting the confidentiality requirements, though she spoke at a generalized level about the legal theories behind the case. The proceedings are closed to the public, so the Herald/Times cannot see the arguments. The Herald/Times has reviewed Weiss’ published opinion and his overall application packet.

Jay, who is privy to the state’s arguments, said Uthmeier hasn’t taken issue with her clients or their fitness as parents. Instead, she said he seems solely interested in securing a court opinion limiting reproductive technology.

The attorney general has argued that the government has a duty to protect children who didn’t have a say in not being raised by both biological parents, Jay said.

If that is indeed Uthmeier’s position, and if the appeals court agrees, it could limit Floridians’ access not only to surrogacy but to things like the use of sperm donors and some uses of in-vitro fertilization.

In some arguments, Uthmeier has suggested that people who donate their sperm, eggs or embryos would need to maintain parental rights and obligations through avenues like time-sharing or child support, Jay said.

While Uthmeier’s office declined to comment on his position or the case facts, Kilman said in a statement that Uthmeier is “concerned about any case where a surrogacy company profits off the sale of children; it constitutes modern-day slavery, interferes with a mom’s parental rights, and the rights of the child.”

Beyond fertility

The questions raised by Weiss in his order could also have a chilling effect on Floridians’ access to abortion.

Weiss’ questions center around the idea of fetal personhood, a concept long supported by anti-abortion advocates.

If a court were to deem that a fetus or embryo has the same constitutional rights as a newborn, that opens the door to arguments that a fetus’ life can’t be terminated.

In 2024, the Alabama Supreme Court ruled that embryos used for in-vitro fertilization are considered children under state law.

Clinics in the state immediately paused their work. The state legislature hurried to pass a law giving fertility clinics legal immunity.

Weiss was appointed to the Broward County court by DeSantis in May 2025. About five months later, Weiss, 46, applied for a spot on the Fourth District Court of Appeals. He attached the surrogacy order he’d written, highlighting it as one of the most significant cases he’s heard.

No Florida court had tackled the issue before, he wrote, which was “particularly significant” following the case overturning Roe v. Wade.

Weiss quoted a sentence from his order, saying that “if a preborn living human being is entitled to legal personhood, it goes without saying that such persons cannot be subject to contractual bartering or ownership.”

Weiss was put on the shortlist passed along to DeSantis’ office but didn’t get the appellate court job.

At least two of the references listed on his application have ties to Florida’s attorney general. Daniel Epstein, an attorney with America First Legal, a firm co-founded by President Donald Trump’s adviser Stephen Miller, was a member of Uthmeier’s transition team.

Jeffrey DeSousa, who works in the Florida Attorney General’s Office, was also listed as a reference.

When asked about Weiss’ handling of the surrogacy order, Chief Judge Carol-Lisa Phillips of the Broward County court said she could not comment on another judge’s ruling or a pending case. An assistant for Weiss did not return requests for comment sent Thursday.

Jay, who describes herself as a constitutional conservative, said her clients are united with the surrogate and her husband in fighting against the attorney general’s case. She said she’s asked the circuit court to investigate how Uthmeier got wind of the case, but said the court has not taken action.

“It is election year for the Attorney General and he has signaled that surrogacy cases are valuable political fodder for his campaign,” Jay wrote in her letter to the court asking for the investigation. “Unfortunately, this seems to have incentivized someone to breach the public trust of the independent judicial branch and use the Broward County Courthouse as a political playground to curry favor in Tallahassee.”

On his social media accounts over the last year, Uthmeier has likened surrogacy to human trafficking and insisted that it was “something we must address in Florida.” He has suggested requiring background checks to ensure sexual predators can’t use surrogacy, but the Legislature didn’t take the issue up.

Kilman, in response to questions about the pending case, highlighted that concern again, saying sexual offenders “purchasing children through these alternative means” should not be allowed to happen.

But he hasn’t publicly called for an end to the practice. He also hasn’t come out against other assisted reproductive technologies like IVF.

Uthmeier is ardently opposed to abortion. He was DeSantis’ chief of staff when the state used taxpayer dollars to fight Amendment 4, which would have enshrined a constitutional right to abortion. The amendment failed, falling 3% short of Florida’s required 60% vote.

Since his appointment, Uthmeier has reshaped Florida law in stark ways.

He chose not to defend Florida’s ban on the open carry of firearms. When an appellate court ruled that ban unconstitutional, he agreed and declared open carry the “law of the state.”

He’s pushed to allow some felons to have guns, a proposal that a prosecutors group opposes. He’s also said he won’t defend Florida’s ban on people younger than 21 buying rifles.

He’s said his office won’t enforce a section of the constitution that bars public funds from going to churches or other religious sects.

And his office argued against a pregnant 17-year-old’s petition for an abortion without parental consent, saying that the statute should be struck down. The court agreed, and Uthmeier claimed the win.

If this appeals court rules in Uthmeier’s favor or decides that fetuses are entitled to the same constitutional rights as born children, it could dramatically change the state’s reproductive law.

And the Florida Supreme Court could back it up. At least five sitting justices in 2024 seemingly expressed interest in the idea of fetal personhood in an opinion about a potential amendment to expand abortion access.

Justice Carlos Muñiz wrote that the proposal would restrict people’s ability to “protect an entire class of human beings from private harm.” During oral arguments, he asked questions about whether fetuses have the same constitutional rights as people.

Lawmakers this year took their first swipe in decades at changing Florida’s surrogacy laws, adopted in 1993. But the result was limited.

The legislation they passed, embedded in a bill about foreign influence, prohibits citizens or residents of a country of concern — China, Iran, Cuba and others — from entering into a surrogacy contract.

Public records show that DeSantis’ office authored similar bill language limiting surrogacy and sent it to the Senate bill’s sponsor, Sen. Erin Grall, R-Vero Beach.

DeSantis’ proposal would have put broader restrictions on surrogacy, including prohibiting anyone who isn’t a U.S. citizen, a lawful permanent resident or a Florida resident from commissioning a surrogate.

It would have required the court to appoint a guardian ad litem to represent the child born via surrogate until custody is established.

Sen. Tina Polsky, D-Boca Raton, sparred with Grall over the surrogacy proposal. Polsky said she suspected that Republicans had something bigger in play — a crackdown on the entire surrogacy industry.

“Maybe this is them initially testing the waters and seeing what they could do,” Polsky said in April. “And then trying to do more next session.”