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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?

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.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

YES

Altruistic surrogacy

YES

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 Father-Mother, Co-parent-Co-parent, or Father or Mother

Rights of Egg or Sperm Donor(s)

No statutes or case law in Illinois directly address the rights of a sperm, egg, or embryo donor over a resulting child. However, the Illinois Gestational Carrier Act does state that “A gamete donor may be liable for child support only if he or she fails to enter into a legal agreement with the intended parent or parents in which the intended parent or parents agree to assume all rights and responsibilities for any resulting child, and the gamete donor relinquishes his or her rights to any gametes, resulting embryos, or children.”

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 mental health evaluation 
  • Must have health insurance policy that covers major medical treatments and hospitalizations and lasts at least eight weeks after the due date
  • Legal counsel

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?

NO

Do courts issue post-birth orders?

Not likely needed

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

NO

Under the Gestational Carrier Act, pre-birth orders are unnecessary. Instead, Intended Parents may directly obtain a birth certificate from Vital Records by presenting a certified statement signed by all parties involved in the surrogacy arrangement. This must be done prior to the child’s birth. Post-birth orders may be obtained in some cases, as well.

Bases of Venue

What are the bases of venue?

County of child’s birthplace

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

NO

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
105 W Madison St, Ste 1101
Chicago, Illinois 60602
(312) 332-6339
gmg@illinoisadoptionlawyer.com
illinoisadoptionlawyer.com

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

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