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STATE SURROGACY LAW:

Illinois Surrogacy Laws

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Overview

Surrogacy is protected in Illinois by the Illinois Gestational Surrogacy Act, 750 ILCS 47/1 – 47/75, which aims 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.”

Types of Surrogacy Available in Illinois

Can a parentage order be obtained for the following?

Gestational surrogacy

YES

Altruistic surrogacy

YES

Traditional surrogacy

YES,

Traditional surrogacy is not covered by the Illinois Gestational Surrogacy Act, but neither is it prohibited. Many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights. Traditional Surrogacy is treated like a stepparent adoption in Illinois so long as the Intended Parent provides the sperm.

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

💚 – Both Intended Parent(s) can be named on the parentage order

💛 – Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

The Gestational Surrogacy Act requires that at least one of the Intended Parents contribute genetic material to the child. If there is no genetic connection, the Intended Parents must complete a post-birth adoption.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Mother, Father, or Parent.

Rights of Egg, Sperm, or Embryo Donor(s)

The law in Illinois regarding gamete (i.e. egg, sperm or embryo) donation was updated in January 2017 by an amendment to the Illinois) and Donor have independent attorneys and have entered into a written legal agreement in which the Donor relinquishes all rights and responsibilities to any resulting child prior to any insemination or embryo transfer, the Intended Parents will be deemed the legal parents of any resulting child and the Donor will not be a parent. The Illinois Parentage Act will apply whether the Donor is “known” to the Intended Parents (i.e., a friend or family member) or whether the Donor and the Intended Parents have been matched through an agency.

Surrogacy Steps in Illinois

Surrogacy Process in Illinois

Select your agency and attorneys

Match with a gestational carrier

Complete medical and psychological evaluations at the fertility center

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

If filing for a pre-birth order, begin process at approximately 20 weeks gestation

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

3-4 weeks; can expedite process.

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

Surrogacy contracts are currently legal and enforceable in Illinois as long as they are pursuant to the Illinois Gestational Surrogacy Act. 

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates

  • Must be at least 21 years old 
  • Must have given birth to at least one child
  • Must have completed a medical evaluation
  • Must have completed a mental health evaluation 
  • Must have a health insurance policy that covers major medical treatments and hospitalizations and lasts at least eight (8) weeks after the birth of the child
  • Must have undergone a legal consultation with independent legal regarding the terms of the contract and the legal consequences of the arrangement

Requirements for Intended Parent(s)

  • Must contribute at least one of the gametes resulting in a pre-embryo that the gestational surrogate will attempt to carry to term
  • Must have a medical need for the gestational surrogacy as determined by qualified physician’s affidavit included in the surrogacy contract and as required by the Illinois Parentage Act of 1984
  • Must have completed a mental health evaluation
  • Must have undergone legal consultation with independent legal counsel regarding the terms of the gestational surrogacy contract and the potential legal consequences of the gestational surrogacy.

Agencies and fertility clinics may have additional requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.

Birth Orders

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

Yes, but typically only requested by international intended parents.

Are hearings required to obtain either pre- or post-birth orders?

NO

Under the Illinois Gestational Surrogacy Act, pre-birth orders are unnecessary, as the Intended Parents are the presumed legal parents of the child as long as the requirements of the Act and the Illinois Department of Public Health were followed.  After certified statements prescribed by the Illinois Department of Public Health are tendered to the Illinois Department of Public Health and the delivery hospital, the name of the Intended Parent(s) is/are placed on the original birth certificate. Post-birth judgements may be obtained upon request.

Bases of Venue

What are the bases of venue?

So long as the child was born in Illinois, any county can hear the proceeding

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

Not necessary as there are no venue requirements

International Issues

International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.  

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s)?

NO

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

Can they obtain a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Genie Miller Gillespie
6 E. Monroe St., #1004
Chicago, Illinois 60603
(312) 332-6339
gmg@illinoisadoptionlawyer.com
illinoisadoptionlawyer.com

 

Chelsea Caldwell
Midwest Fertility Law Group, PLC 
740 Southwest Drive
Jonesboro, Arkansas 72401
(870) 280-2648
chelsea@mwflg.com

Assisted with 2023 Updates

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019