Unfortunate Michigan & New Jersey Surrogacy Cases & the Advantages of the Illinois Gestational Surrogacy Act

January 6th, 2010

Happy New Year! I have great hopes for 2010 and think it is going to be a fortuitous year for people seeking alternative family-building options and the third-party reproduction industry in general.

But, first, I need to discuss two rulings involving gestational surrogacy outside of Illinois and assure intended parents and gestational surrogates alike that, as long as the requirements of the Illinois Gestational Surrogacy Act are satisfied and you work with a reputable agency, similar situations should not occur in this state.

For those of you who haven’t read about these cases in the New York Times or elsewhere, the first took place in Michigan and involves a married couple who, after years of infertility issues, turned to surrogacy. To create their family, they used an egg donor, anonymous sperm donor and found a gestational carrier, who already has four children of her own, to deliver the baby.

A month after the birth of twins, a police officer supervised as the couple was forced to relinquish their infants into the custody of the gestational surrogate who gave birth to them. While the surrogate has no genetic link to the babies, neither do the intended parents and the surrogate was able to obtain a court order to retrieve the infants after learning the intended mother was being treated for mental Illness. While there was a contract, according to the Times article, a statute in Michigan, where the twins were born, holds that surrogacy is contrary to public policy and that agreements are unenforceable.

In a second case, also discussed in the New York Times, a single woman with no children of her own agreed to be a gestational surrogate for her gay brother and his husband, who donated sperm. A New Jersey judge ruled that the surrogate, who gave birth to twins, is their legal mother, even though she is not genetically related to them. In this case, the twins do have a genetic link to one of their fathers, but the court still ruled in favor of the surrogate. The ruling gives the woman the right to seek primary custody of the children at a trial in the spring.

In both cases, these unfortunate situations could have been avoided if the babies were born in Illinois and the requirements of the Illinois Gestational Surrogacy Act were adhered to.

While I won’t list all of them here, some of the most pertinent requirements include: 1) At least one of the gametes (egg or sperm) used in forming the embryo must be contributed by an intended parent; 2) The surrogate cannot also be the egg donor, making her a gestational surrogate. At ConceiveAbilities, our Illinois surrogacy program requires that our gestational surrogates have no genetic link to the child/children; 3) The gestational surrogate must be at least 21 years old and already have at least one child of her own; 4) The intended parent(s) and surrogate must complete a mental health evaluation, and the surrogate must also have a complete medical evaluation; 5) Both the intended parent(s) and surrogate must consult with an attorney regarding the terms of the gestational surrogacy agreement and the potential legal consequences of participating in a surrogacy arrangement.

Lastly and perhaps most importantly, in Illinois, if all requirements of the Act are met and certified by the attorneys representing both the gestational surrogate and intended parent(s), then parentage is established immediately at the time of birth. And, the intended parent(s) names are placed on the birth certificate with no court involvement or subsequent adoption proceedings. This makes Illinois a very surrogacy friendly state- Nazca