Illinois Gestational Surrogacy

 Posted on March 23, 2016 in Adoption

Technological advances over the last decade have made conceiving a biological child possible for many individuals, despite being unable to reproduce naturally. Couples can utilize the process of gestational surrogacy, in which a woman agrees to carry and give birth to a child created through in-vitro fertilization. After the birth of the child, the surrogate gives up all parental rights.

Gestational Surrogacy Act

In order to be a gestational surrogate in Illinois, a woman must:

• Be at least 21 years old;
• Have given birth to at least one child;
• Submit to a medical evaluation;
• Complete a mental health evaluation;
• Consult with an attorney regarding the surrogacy contract; and
• Obtain a health insurance policy that covers major medical treatments throughout the pregnancy and for two months afterward.

In order to enter into a gestational surrogacy contract, the intended parents must:

• Contribute at least one of the gametes used in creating the pre-embryo;
• Medically require surrogacy to have a biological child;
• Complete a mental health evaluation; and
• Consult with an attorney about the terms of the contract.

Gestational Surrogacy Contract

In Illinois, a gestational surrogacy contract must be in writing and must be executed before any medical procedures are undertaken. Additionally, all parties are required to sign an acknowledgement, indicating that they were independently represented by legal counsel. In the event that a contract provides for payment to the surrogate, the funds are placed in escrow prior to any medical procedures. Finally, the contract is witnessed by two competent adults.

In addition, the contract must contain the expressed written agreement of the surrogate to undergo a pre-embryo transfer and attempt to carry the baby to full-term. The surrogate agrees to give up custody of the infant to the intended parents when the child is born. Also, the contract’s language states that a surrogate has the right to be treated by a doctor of her choosing during the pregnancy, after consulting with the intended parents. Finally, the intended parents agree to take custody of the child and assume sole responsibility for the child's support as soon as the child is born.

Rights of Parentage

If a gestational surrogacy satisfies all legal requirements as soon as the child is born, then she will be considered the legal offspring of the intended couple. All parental rights, including sole custody, vest in the parents at that time, and any and all parental rights of the surrogate are terminated.

If a laboratory makes a mistake and a discovery is made that a child is not genetically related to either of the intended parents, the couple is still considered to be the parents of the child unless a Court decides otherwise.

If you are considering surrogacy as a means to have a biological child, understanding how this will affect your parental rights is essential. An attorney can help you enter into a valid and enforceable contract and ensure that the rights of you and your child are protected throughout the process. Please contact experienced Palatine family law attorney Nicholas W. Richardson for a free consultation.

Resources:

http://www.idph.state.il.us/vitalrecords/surrogacy/Pages/default.htm

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2613