TALLAHASSEE, Fla. — A Florida judge who took unusual steps to question the legality of surrogacy is getting a promotion.

Gov. Ron DeSantis on Sept. 4 appointed Judge Marlon Weiss to the 4th District Court of Appeal, according to an appointment letter posted by his office.

Weiss was the judge who oversaw a South Florida surrogacy case that last year drew the attention of the state’s attorney general. The case could dramatically reshape reproductive law in the state. In his order, Weiss raised the question of whether surrogacy is unconstitutional. He said that if unborn children are entitled to personhood — or the rights of born individuals — those children cannot be subject to a contract for “ownership.”

Weiss included that order in his application for the governor’s nomination to the appellate court.

Anti-abortion advocates have long pushed for fetal personhood as a way to crush abortion access. Legally creating that right for unborn children could also affect a range of reproductive issues besides abortion, including surrogacy and in-vitro fertilization.

Weiss’ order cited legal articles in favor of fetal personhood.

His order came as a surprise to the married couple who petitioned Weiss for early parental rights. Weiss granted those rights in the same order in which he cast doubt on surrogacy as a whole.

Surrogacy cases in Florida are confidential. But Weiss said his ruling wasn’t confidential because it didn’t share identifying information. A month later, he submitted it as part of his first application to be on the appellate court. He was not selected then.

In his application last year, Weiss highlighted the order as one of his most significant cases. The issue at hand was “particularly significant” following the overturning of Roe v. Wade, he wrote, and no Florida court had yet tackled it.

Roughly 24 hours after the couple told the court about the baby’s birth, Florida Attorney General James Uthmeier’s office petitioned to intervene.

It’s not clear how Uthmeier’s office heard about the case.

His office is arguing that surrogacy is akin to slavery, saying it violates the 13th Amendment and should be deemed unconstitutional, according to Katie Jay, a lawyer representing the couple.

The case is now in front of the 4th District Court of Appeal — where DeSantis appointed Weiss. The baby has been with the couple since birth, and Uthmeier’s office is not attacking their fitness as parents, Jay said. Rather, his office is pushing for a court order to limit reproductive technology.

Jay said she doesn’t accuse Weiss of having shared the confidential case information with Uthmeier’s office, noting she has no evidence of that.

“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 earlier this year.

Weiss was first appointed to the 17th Judicial Circuit Court by DeSantis in May 2025.

Parts of Weiss’ most recent application for the appellate court were redacted by the Judicial Nominating Commission, although the commission provided the Times/Herald with Weiss’ first, unredacted application earlier this year.

Among the other cases Weiss highlighted in his latest application was one for an emergency motion to change custody based on a parent’s arrest for open carrying a firearm.

The arrest came about a month before a Florida appellate court ruled that the state’s open-carry ban was unconstitutional. Weiss ruled that the open-carry arrest alone wasn’t evidence the gun was used irresponsibly. His ruling came down on the same day Uthmeier’s office said open carry is the “law of the state.”

Weiss, 46, can stay on the bench for nearly 30 years, as long as he is retained by a majority of voters.

Along with Weiss, DeSantis also appointed Judge Eric Netcher of the 9th Judicial Circuit to the 4th District Court of Appeal.

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