GESTATIONAL SURROGACY LAW ILLINOIS
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 child’s 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.
Is Gestational Surrogacy Legal in Illinois?
Is Traditional Surrogacy Legal in Illinois?
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.
Is Compensated Surrogacy Legal in Illinois?
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:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating an Illinois Surrogacy Contract
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:
- Compensation and reimbursement for the surrogate
- Obligations of each party to the other
- Behavior of the surrogate during pregnancy
- Any contact between the parties after the child is born
- Agreements on sensitive issues like selective reduction and termination
The contract must be witnessed by two competent adults. Once the contract agreed up and executed, the medical process of surrogacy can begin.
Determining Legal Parentage in Illinois
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.
Same-Sex Surrogacy in Illinois
Q: Is Same-Sex Surrogacy Legal in Illinois?
A: 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.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Illinois?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Illinois?
A: 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.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Illinois?
A: 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.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: 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.
Q: Does Illinois Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: 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.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: 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.
REPRODUCTIVE LAW PRACTITIONERS
Ross E. Heather
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