What you need to know about Gestational Surrogacy in Illinois
When we say gestational surrogacy, we mean the process by which one individual becomes pregnant through assisted reproductive medicine and carries the baby for another individual or individuals who will then be the child’s parent. There are two types of surrogacy, traditional and gestational. Traditional surrogacy is where the surrogate’s egg is used to create the embryo, so the surrogate is also biologically related to the child. Gestational surrogacy is where the surrogate is not biologically related and does not contribute the egg or embryo, but carries the baby from embryo to birth.
Illinois has a law governing paid Gestational Surrogacy – not all states do and gestational surrogacy is illegal in some states. The Illinois Gestational Surrogacy Act does not apply to traditional surrogacy and is only available to gestational surrogacy when the surrogate does not contribute her egg (or embryo). The Illinois Gestational Surrogacy Act clearly lays out what is required to receive the protections of the law. If these requirements are not followed, that does not mean it is illegal, it just means the protection provided may not be available to the intended parents or the gestational carrier and additional steps to solidify the legal relationship of the child and the parents may be required.
The following are the basic requirements under the law:
For the Intended Parent(s):
- Must have at least one gamate (sperm or egg) – one IP must be biologically related to the resulting child
- Medical Need supported by an affidavit of a qualified physician (includes same sex couples who cannot biologically reproduce without surrogacy)
- Mental Health Screening
- Represented by independent counsel
For the Gestational Surrogate:
- Over the age of 21
- Has successfully birthed a child
- Medical screening
- Mental health screening
- Represented by independent counsel
- Is covered by a health insurance policy for the duration of the expected pregnancy (there are surrogacy specific insurance policies!)
- If married, her spouse must be a party to the agreement
If the Intended Parent(s) and the Gestational Carrier meet the above requirements, they must enter into a written agreement, signed prior to beginning any injections in preparation for a transfer (but can be signed after test injections to determine responsiveness to medications). The agreement must contain certain duties that each party agrees to comply with before, during, and after the pregnancy. The Agreement must be witnessed by two competent adults who are not parties to the agreement.
Generally the gestational carrier is compensated for the time, effort, and physical activity of carrying a baby and as pre-birth child support, in addition to the intended parents covering all related medical expenses in relation to the IVF, pregnancy, and birth of the child. Any compensation must be placed in an independent escrow account and will be paid based on the contract.
In addition to the signed Agreement, there are documents that must be filed with the Illinois Department of Vital Records, with original signatures on these documents provided to the hospital prior to delivery. If all of these steps are followed, then the intended parents’ names can be on the birth certificate for the baby immediately following birth without any additional court filings. However, parties may choose to take additional steps to further secure the legal relationships though the court system.
The Illinois Gestational Surrogacy Act contains additional, specific requirements about what must be in the agreement, so it is important to have an attorney knowledgeable about the specifics of Illinois’ law. There are also a lot of open areas that the parties can negotiate to best fit their situation. Family Forward Law, LLC would love to help you navigate growing your family through gestational surrogacy!