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Illinois Surrogacy Law: 3 Important Facts - ConceiveAbilities

January 4th, 2016 Category: Surrogacy

Illinois Surrogacy Law

Out of the fifty states, Illinois has become one of the most surrogacy-friendly states, second only to California. Because of the existing regulation, children from surrogacy have protected rights, and the medical procedures involved have higher safety standards. In particular, this can be seen with the Illinois Gestational Surrogacy Act:

Sec. 5. Purpose. 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.

Still, there are a couple laws that both surrogates and intended parents should be aware of when choosing the path of surrogacy. Intended parents, as well as women considering the step of becoming a surrogate, should make sure that they understand these issues thoroughly before pursuing their chosen path.

1) The Act Protects Gestational Surrogacy

With traditional surrogacy, a surrogate mother is impregnated in a process involving donated sperm – often with the sperm of the desired father. Since the surrogate uses her own eggs, she has a genetic connection to the child. With the advancement of gestational surrogacy, the surrogate mother is not the genetic mother of the child she bears. Eggs are taken from a donor, and often the hopeful mother employs her as a surrogate in the first place. The surrogate bears the child to term, but is not genetically related. Be aware: the act protects gestational surrogacy but not traditional surrogacy.

Make sure to be aware of the gestational surrogacy agreements – under Illinois surrogacy law, the existing language only applies to gestational agreements. If you want the law on your side with regards to a surrogacy agreement in Illinois, it must be a gestational surrogacy agreement.

2) The Court is Not Involved with the Process

It’s important to have the proper certified statements signed. With the Illinois Gestational Surrogacy Act, the court system is removed from the surrogacy agreement. This is to make sure that the intended parents maintain custody of their child. Make sure to get two separate certified statements signed: the rights of parentage by both the intended parents and the surrogate mother, and another certified statement signed off by a practicing physician. This ensures that upon the child’s birth, both intended parents have full rights to the child, and that their names appear on the child’s birth certificate.

3) It makes no Reference to LGBT Parents

With regard to the LGBT community, the Illinois Gestational Surrogacy Act gets into a slight gray area. That’s because it doesn’t make any specific mention with regards to LGBT parents. This also means it’s not prohibited. However, an Illinois Appellate court previously sanctioned adoption for same-sex parents – whether it be a joint adoption, or individual adopting their partner's child. It’s reasonable to assume that this kind of definition would help protect LGBT parents involved with the surrogacy process.

Other Areas of Illinois Surrogacy Law

Regarding Parents:

  • Intended parents need not be residents of Illinois.
  • Intended parents need not be married.
  • Of the two parents, at least one must contribute genetically; either the egg or the sperm must come from the intended parents.
  • Intended parents are required to have a medical need for the gestational surrogacy.
  • Intended parents are required to complete evaluations of both their medical and their mental health.
  • Intended parents are required to consult with legal counsel regarding any potential ramifications of a prospective surrogacy agreement.

Regarding Surrogates:

  • Surrogate mothers are likewise not required to reside in Illinois, but – for the act to cover their agreement – they must give birth within the state.
  • Surrogate mothers are required to be at least 21, and to have given birth to at least one child previously.
  • Surrogate mothers are also required to undergo full physical and mental health examinations.
  • Surrogate mothers are also required to consult with legal counsel regarding any potential ramifications of a prospective surrogacy agreement.
  • Surrogate mothers are required to have, and to maintain, an active health insurance policy – one that can cover major medical treatments and hospitalization.

Illinois Surrogacy Law: Making Progress

Illinois has made tremendous strides in pursuing progressive and family-friendly policy. Because of the nature of the Illinois Gestational Carrier Act, more intended parents are afforded the ability to start their own families. This act is the first step towards a country that allows everyone to have a family, regardless of their social status, medical condition, or identity. In the meantime, it’s important to understand this law as you begin to start your own family.

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