No Temporary Restraining Order Against Accusations of Surrogacy Agency Error

"After receiving their surrogate baby, the couple purportedly performed an at-home DNA test 'which showed that [the would-be father] was in no way related to the baby.'"

From last week's decision by Judge Beth Bloom (S.D. Fla.) in Miracle Surrogacy, LLC v. Monello-Fuentes:

Defendants … contacted Miracle Surrogacy and Miracle Surrogacy of Mexico to assist in facilitating a pregnancy through surrogacy. The couple intended to use the sperm of Monello, the egg of an anonymous egg donor, "and a surrogate to carry the embryo to term."

Although Plaintiffs facilitate the genetic collection, conception, and surrogacy, Plaintiffs contend that they do not provide medical services and that they do not "guarantee satisfaction with the medical services, or any medical outcomes related to the surrogacy journey." However, after Fuentes and Monello [the would-be mother and father] completed the surrogacy process, they were dissatisfied with their outcome. After receiving their surrogate baby, the couple purportedly performed an at-home DNA test "which showed that Monello was in no way related to the baby." Upon making this discovery, Plaintiffs claim "Fuentes began manufacturing libelous statements. Specifically, that the baby conceived through surrogacy is in no way biologically related to Fuentes nor Monello."

According to Plaintiffs, Fuentes and Monello have made many libelous statements across a number of social media platforms …. On Facebook, Fuentes has created a group named "Justice for Baby Emma: Hold Miracle Surrogacy Accountable …. Plaintiffs claim the description of the Facebook Group contains libel as it states that the purpose of the group is to "seek justice against Miracle Surrogacy as a result of being 'misled, denied access to basic medical records, and ultimately [being] handed a child who is not biologically ours.'"

Fuentes has made similar allegedly slanderous statements in a series of YouTube videos, "where Fuentes has over eighteen thousand (18,000) subscribers." Fuentes' defamatory statements include but, are not limited to, that "Miracle Surrogacy, Miracle Surrogacy of Mexico, and Yaden [Miracle Surrogacy's primary owner and operator] took part in 'gross negligence and potential medical malpractice,'" that they "are 'responsible for the creation of hundreds of babies without verifying they are biologically related to the intended parents who hire them,' that Fuentes is 'aware of another case where another couple's embryo was implanted incorrectly,' that they are 'human trafficking' and that Fuentes was 'pressured to continue a process built on deception.'" Additionally, Fuentes has recently shared a story "which insinuates that a former employee of Miracle Surrogacy of Mexico informed Fuentes that they have been asked to 'alter medical records and when they refused, they believe the records were still changed."'

Beginning on April 8, 2025, "Monello joined Fuentes in disseminating slanderous statements" about the Plaintiffs. Monello stated in the Facebook Group that Miracle Surrogacy engages in "child laundering." The couple later accused Plaintiffs' of running a "scam."

Plaintiffs maintain that the couple's statements "are entirely false" as Plaintiffs "do not engage in human trafficking, gross negligence, medical malpractice, [or] assist[ ] in the creation of incorrect genetics, nor do[ ] [they] act in any manner that would justify such statements." However, despite Fuentes and Monello's statements being completely false, Plaintiffs claim the couple's allegations have disrupted their business. Plaintiffs assert that at least "two potential clients who were in the process of beginning their journey with Miracle Surrogacy and Miracle Surrogacy of Mexico" decided they would no longer do business with Plaintiffs in light of the statements made by the couple….

Plaintiffs sued, and on the same day also sought a Temporary Restraining Order (see here for their argument), but the court denied the TRO; an excerpt:

"[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." "Like statutes that regulate speech, court-ordered injunctions that regulate speech are also subject to First Amendment scrutiny" and therefore may constitute a prior restraint….. "[A] temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns." … "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints."' …

"Florida's courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements." Plaintiffs are in no uncertain terms requesting the Court issue an injunction restricting Defendants' speech. Plaintiffs offer no reason why the proposed injunction does not constitute a prior restraint or censorship on speech, nor do they offer any justification, let alone a compelling one, that would rebut the presumptive unconstitutionality of the injunction….

While courts holding that temporary restraining orders restricting speech are presumptively invalid have dealt with the issue in the context of speech that has yet to be published, Florida courts have held that the prohibition also applies to speech after it is published.

However, even assuming the First Amendment did not prevent a temporary restraining order on already published statements, Plaintiffs fail to offer evidence beyond conclusory allegations that the statements made by Defendants are false. Therefore, Plaintiffs' Motion also fails as they have not shown that they are likely to prevail on the merits.

Note that courts in many state appellate courts and federal circuits have allowed permanent injunctions barring the repetition of statements that had been adjudicated to be libelous (at trial or via a default judgment); but courts generally reject as prior restraints injunctions entered prior to such a final determination of falsehood. See my Anti-Libel Injunctions article for much more, including citations to cases that depart from the norm and do allow (erroneously, I think) preliminary injunctions or TROs in such cases.