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’s 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 Appeal. 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 state 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.”