Illinois Surrogacy Laws

Overview of Illinois Surrogacy Law

While Chicago, Illinois, the Windy City, is famous for its deep-dish pizzas and the Cloud Gate “bean” sculpture in Millennium Park, Illinois is also known for its progressive and surrogacy-friendly laws, making it one of the most accommodating states for surrogacy arrangements.

The Illinois Gestational Surrogacy Act (the “Act”) ((750 ILCS 47/5)Sec. 5) establishes the legal requirements of a gestational surrogacy arrangement under Illinois law. According to the Act, “the purpose of this Act is to establish consistent standards and procedural safeguards for the protection of all parties involved in a gestational surrogacy contract in this State and to confirm the legal status of children born as a result of these contracts. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of this State.”

The surrogacy legal process in Illinois is divided into two main categories: (i) the gestational surrogacy agreement established at the beginning of the surrogacy journey which is entered into after medical and psychological approval but prior to the Gestational Surrogate starting fertility-related medications, and, (ii) the parental rights process to confirm the parental rights of the intended parent(s).

Illinois Surrogacy Agreement:

Illinois surrogacy law has specific requirements pertaining to the surrogacy agreement which, in part, relate to requirements of the gestational surrogate, requirements of the intended parent(s), and requirements of the gestational surrogacy agreement. Certain provisions must be included in an Illinois surrogacy agreement to confirm the parental rights of the intended parent(s). In addition to the legal requirements of an Illinois surrogacy agreement, the parties’ surrogacy agreement will contemplate other standard “best practices” provisions that go into a surrogacy agreement such as, how many embryo attempts the surrogate will perform, upholding confidentiality, conditions of future contact, and other provisions recommended by your Illinois surrogacy attorney.

Illinois Surrogacy Law Requirement of Gestational Surrogate:

• The surrogate must be at least 21 years of age
• The surrogate must have given birth to at least one child
• The surrogate must complete a medical evaluation
• The surrogate must complete a mental health evaluation
• The surrogate must undergo a legal consultation with independent legal counsel regarding the terms of the gestational surrogacy agreement
• The surrogate has obtained (or the intended parent(s) have obtained on her behalf), health insurance in accordance with the requirements of the Act.

Illinois Surrogacy Law Requirements of Intended Parent(s):

• At least one member of the intended parent(s) must have a genetic connection to the embryo (i.e. the egg or sperm of at least one of the intended parents)
• The intended parent(s) demonstrate a medical need for surrogacy as evidenced by a qualified physician’s affidavit
• The intended parent(s) must complete a mental health evaluation
• The intended parent(s) must undergo a legal consultation with independent legal counsel regarding the terms of the gestational surrogacy agreement

Illinois Surrogacy Law Requirements of Illinois Surrogacy Agreement: the gestational surrogacy agreement must satisfy the requirements of the Act which includes, in part, some of the following requirements:

• The surrogacy agreement shall be in writing, witnessed by 2 competent adults, and executed prior to the commencement of any medical procedures (not including medical and mental health screenings to qualify the surrogate to proceed as a surrogate), and shall include as parties to the agreement the intended parent(s) and the surrogate and her spouse (if applicable) each represented by separate counsel
• Use of an independent escrow account if the surrogate is receiving the payment of compensation
• Representations from the gestational surrogate that she agrees to undergo an embryo transfer, attempt to carry and give birth to the child, surrender custody of the child to the intended parent(s) upon birth, and that she has the right to use the services of a physician of her choosing (in consultation with the intended parent(s)) for her care during the pregnancy. The Act requires similar representations if the surrogate is married to the surrogate’s spouse.
• Representations from the intended parent(s) to assume custody and sole responsibility for the support of the child upon birth.
• The Act contains other provisions that are permissible in an Illinois surrogacy agreement, for example, the intended parent(s) paying the surrogate reasonable compensation and the surrogate agreeing to abstain from activities that the intended parent(s) or physician reasonably believe to be harmful to the pregnancy such as following certain health precautions.

Illinois Parentage Process:

Illinois law has a structured framework in place to establish the parental rights of the intended parent(s) in an Illinois surrogacy law matter to ensure that the intended parent(s) (irrespective of gender or marital/civil union status), are placed on the birth certificate for the child(ren) and that the surrogate is not placed on the birth certificate. This relationship must be established prior to the birth of the child in accordance with Section 12 of the Vital Records Act, Section 6 of the Illinois Parentage Act of 1984, and the Gestational Surrogacy Act. In Illinois, there is not a court proceeding to confirm the parental rights of the intended parent(s), but it is in fact, an administrative process that can be handled by the intended parent(s) attorney in coordination between the hospital and Illinois Department of Vital Records.

The Illinois parentage process to place the intended parent(s) on the birth certificate requires specific certified statements, witnessed by two competent adults, from those involved in the surrogacy, matters prior to the birth of the child(ren) that are provided to the hospital (an original of the certifications) and copies to the Illinois Division of Vital Records such as:

• A certified statement from the intended parent(s) and surrogate and her spouse (if applicable) that all parties received information about the legal, financial, and contractual rights, expectations, penalties, and obligations of the surrogacy agreement
• A certified statement from the intended parent(s)’ and surrogate’s (and her spouse, if applicable) attorneys confirming the surrogacy agreement complies with the Act
• A certified statement from a physician licensed in the state in which the embryo transfer occurred certifying that the child being carried by the gestational surrogate was conceived using the gamete or gametes of at least one of the intended parents and that neither the gestational surrogate nor the gestational surrogate’s spouse, if any, provided gametes for the child being carried by the gestational surrogate

Illinois is a surrogacy-friendly state that provides a clear path to parenthood for those proceeding with surrogacy in Illinois. Consult with an Illinois surrogacy attorney to determine if Illinois surrogacy laws apply to your journey, however, generally speaking, Illinois surrogacy laws can be used when the surrogate is delivering in Illinois. Greenspoon Marder’s surrogacy practice group is honored to assist intended parent(s) or surrogates with surrogacy matters in Illinois. Greenspoon Marder’s has an office located in Chicago, Illinois.