Illinois has some of the most comprehensive and detailed statutory provisions in the country that address surrogacy found in the Illinois Gestational Surrogacy Act. The Act expressly permits gestational surrogacy, sets forth the contractual requirements for an enforceable agreement and establishes the legal parental rights of the intended parents. Most notably, it provides that any intended parents who comply with and satisfy the statutory requirements are required to be named on the childs birth certificate, bypassing the need for court action to obtain parental rights.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Illinois, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below are some of the most frequently asked questions about Illinois.
Yes. Gestational surrogacy is legal under the Illinois Gestational Surrogacy Act.
Yes. Traditional surrogacy laws are not included in the Illinois Gestational Surrogacy Act so it is not prohibited; however, there are no laws protecting it making it a risky path to pursue.
Traditional surrogate journeys are rare because in these cases, the surrogate is the biological mother of the child and courts may favor the biological mother and grant her parental rights. Due to the risks associated with pursuing this path, it is discouraged and most all attorneys will not complete a traditional surrogacy.
Yes. Compensated surrogacy is legal in Illinois under the Illinois Gestational Surrogacy Act which confirms a surrogate’s right to receive compensation and the legal enforceability of these surrogacy contracts. This is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
Surrogacy contracts regulate the relationship between the intended parents and the surrogate. Intended parents and surrogates must be represented by separate attorneys to protect each parties’ rights. These attorneys will negotiate a contract that addresses at least the following:
The contract must be witnessed by two competent adults. Once the contract agreed up and executed, the medical process of surrogacy can begin.
Illinois has enacted a statutory scheme for surrogacy arrangements; therefore, no court action is typically necessary for intended parents to establish their parental rights when at least one person has a genetic connection to the child, regardless of whether they are unmarried or a married heterosexual or same-sex couple, or a single individual. As a result, pre-birth orders are unnecessary. However, you can obtain a parentage order if your unique situation requires it.
In cases where neither of the intended parents, or a single individual, is not genetically related to the child born through surrogacy, the intended parent(s) will need to complete an adoption after birth in order to establish their legal parental rights.
Below is a list of some of the most frequently asked questions about surrogacy in Illinois.
Yes. The Illinois Gestational Surrogacy Act confirms that surrogacy contracts are enforceable. In the rare situation where the contract doesn’t comply with the Gestational Surrogacy Act, it can still be enforceable if it is otherwise a valid contract.
No. All surrogacy laws in Illinois that apply to domestic intended parents also apply to international intended parents. It is important, however, that intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
If no intended parent is genetically related to the child, then the intended parent or parents will need to complete an adoption post-birth. This occurs in situations when the intended parent(s) are using a donor egg, sperm, or embryo.
Yes. However, the provisions of the Gestational Surrogacy Act make second-parent adoptions unnecessary in most cases. An exception would be if the intended parent is in a relationship but unmarried and one of the partners is not genetically related to the child, the partner with no genetic connection would need to complete a second-parent adoption.
In cases where neither intended parent is genetically related to the child and/or if they can’t obtain a parentage order, they would need to complete a stepparent adoption.
Intended parents who use a donor egg or donor sperm go through the same process as intended parents who are genetically related to the child born via surrogacy. In cases where the intended parents use a donor embryo and neither of them is related to the child, they will need to adopt the child post-birth.
Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
No. There are no additional laws impacting same-sex parents in this state.
Ryan Ferrante
Chicago, IL
ryan@ryanferrantelaw.com
ryanferrantelaw.com
(773) 251-2287
Ross E. Heather
Northbrook, IL
hross@rossandzuckerman.com
(847) 412-0572
Karen Spence
Chicago, IL
kspence@ivflaw.com
ivflaw.com
(847) 955-0350
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