Gestational Surrogacy Laws in Illinois

Use these links to jump to different sections:

• The Illinois Gestational Surrogacy Act
• Parental Rights in Illinois Surrogacy Law

The law of contracts is old, well-settled and staid. We rely every day on agreements and enforceable remedies when things fall apart. The rules largely track with our culturally ingrained logic measuring fair and unfair, and most contract disputes have clear answers.

Most, but not all.

Some types of agreements elude our fairness gauge, or make the thing explode entirely. Agreements regarding gestational surrogacy—where a woman contracts to have someone else’s baby for them—can test the limits of contract law.

Recent case law complications have arisen around issues such as the “reduction” of multiple implanted embryos, or the discovery of birth defects in the fifth month of pregnancy. Best-laid plans can go awry, and when the result is a human life, what are the rules?

Many state laws recognize surrogacy agreements and allow some form of it. Surrogacy has become an increasingly popular choice for people otherwise unable to have a baby. One estimate from the CDC is that between 1999 and 2013, 18,400 babies were born using a gestational surrogate.

The majority of these arrangements go as planned. However, because standards vary considerably from state to state, it’s very important to know as much as you can about the law in your state should you contemplate a surrogacy arrangement.

The Illinois Gestational Surrogacy Act

The state of Illinois is among the most surrogacy-friendly states in the country. Its 2005 Gestational Surrogacy Act outlines “consistent standards and procedural safeguards” granting protections to all parties in a surrogacy agreement, and clearly establishing parental rights.

The law states obligations applicable to each party, as well as specific requirements for the surrogacy contract. For the law to apply, neither the intended parent(s) nor the surrogate are required to live in Illinois, but the baby must be born there. Illinois’ law applies to straight and LGBTQ parents, married or single.

The gestational surrogate and the intended parent(s) must be represented by separate counsel, and any compensation to be provided pursuant to the agreement must be placed in an escrow account prior to the beginning of any medical treatment.

The agreement may also contain restrictions on the surrogate’s activities during pregnancy, such as using alcohol or tobacco.

Other rules include that the gestational surrogate (or gestational carrier) must:

• Be at least 21 years of age
• Have given birth to at least one baby
• Complete a medical and a mental health evaluation
• Have consulted with an independent lawyer about the terms of the agreement
• Be covered by health insurance

The intended parent(s) must:

• Contribute either the egg or the sperm (at least one parent must have a genetic connection to the baby)
• Have a medical need for gestational surrogacy, verified by a physician’s statement
• Complete a mental health evaluation
• Have consulted with an independent lawyer about the terms of the agreement

The surrogacy contract must:

• Be signed by the gestational surrogate, her spouse if any, and by the intended parent(s) prior to any medical procedure related to the surrogacy
• Be witnessed by two competent adults
• Provide that the surrogate is entitled to use the doctor of her choice
• Contain the expressed agreement of the intended parents to accept custody of the baby immediately upon birth, and to assume sole responsibility for care of the child

Parental Rights in Illinois Surrogacy Law

In conjunction with the Illinois Parentage Act, the state may establish parentage of the baby prior to birth and without involvement of the courts.

Attorneys representing each of the parties must file certifications with the Department of Vital Records, as well as with the hospital where the birth will take place, that he or she is the genetic child of at least one of the intended parents.

Where administrative requirements have been met, the intended parents will be the recognized parents of the baby immediately upon birth, and their name(s) will be stated on the birth certificate. The surrogate will not have any parental rights.

To pursue gestational surrogacy, it is imperative that you have knowledgeable legal counsel. Be sure to interview several family law attorneys and explore their experience with surrogacy to find the right person to help you.