If you’re considering surrogacy in Illinois, you’re in luck: Illinois is one of the most surrogacy-friendly states in the country. Its gestational surrogacy act specifically recognizes gestational surrogacy and sets out guidelines so that surrogacy arrangements are efficient and enforceable — making your Illinois surrogacy process as easy as possible.
When parties enter into an Illinois surrogacy agreement that complies with the state statute, no court action is required to obtain a birth certificate in the names of the intended parents. So long as certifications are completed by all the parties, attorneys, and a physician involved, and so long as those certifications are received by the hospital prior to the birth of the child, the birth certificate is issued in the names of the intended parents. Nothing has to be filed with the court.
Therefore, unlike most states, the legal procedure for an Illinois surrogacy agreement that falls under the Illinois Gestational Surrogacy Act is a simple, one-stage process. However, it is still critical to work with a lawyer who is experienced in surrogacy matters to ensure that you follow all the necessary surrogacy laws in Illinois. To help you better understand the process, lawyer Tim Schlesinger answers some of your common Illinois surrogacy questions:
Q: Is surrogacy legal in Illinois?
A: Yes. The Illinois Gestational Surrogacy Act specifically makes surrogacy legal and creates a process by which intended parents are declared the parents of the child without going to court.
Q: Is compensated surrogacy legal in Illinois?
A: Yes. The Illinois Gestational Surrogacy Act specifically provides for compensation for gestational surrogates.
Q: Is traditional surrogacy legal in Illinois?
A: There is no clear answer to this. The Illinois Gestational Surrogacy Act specifically excludes traditional surrogacy. The gestational surrogate is not allowed to be the genetic parent of the child. That doesn’t necessarily mean traditional surrogacy is unenforceable. No traditional surrogacy arrangement has ever been challenged in the Illinois courts. However, a traditional surrogacy arrangement could only be enforced by a court and the intended mother would have to adopt, terminating the parental rights of the traditional surrogate. In Illinois, just like every other state, traditional surrogacy creates a significant legal risk for all parties involved.
Q: What does a surrogacy agreement in Illinois cover, and how does the legal process work?
A: The surrogacy agreement regulates the relationship among the parties, including: the compensation and reimbursement paid by the intended parents to the surrogate; the obligations of each party to the other; the behavior of the surrogate during pregnancy; any contacts among the parties after the child is born; and, of course, the rights of the intended parents as the parents of any child born as the result of the surrogacy arrangement, for all purposes.
In an Illinois surrogacy that meets this state statute, there is no court action required to obtain a birth certificate with the names of the intended parents. So long as certifications, which are on forms created by the Illinois Department of Public Health, are completed by all the parties, attorneys and a physician involved, and so long as those certifications are received by the hospital prior to the birth of the child, the birth certificate is issued in the names of the intended parents. Nothing has to be filed with the court.
Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Illinois?
A: Yes. The Gestational Surrogacy Act expressly makes surrogacy contracts enforceable. Even if, for some reason, the contract doesn’t comply with the Gestational Surrogacy Act, it can still be enforceable if it is otherwise a valid contract.
Q: What are the surrogacy laws in Illinois on parentage orders?
A: The Gestational Surrogacy Act creates an unusual system in which no parentage orders are necessary in most cases. You can still obtain a parentage order if it is necessary in your case.
Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Illinois?
A: Typically, parents outside the U.S. need a judgment in order to obtain citizenship in their home country for the child. As a result, if intended parents live outside the U.S., even if the agreement complies with the Gestational Surrogacy Act, intended parents will need to go through the courts to obtain a parentage judgment. This can be obtained very quickly after the birth of the child. It is important for foreign intended parents to also engage an attorney in their home country, so that country’s rules are followed in terms of obtaining proper authority to get a passport for the child and obtain citizenship for the child in the home country.
Q: When do intended parents need to complete an adoption after birth?
A: If no intended parent is genetically related to the child, then the intended parent or parents will need to adopt. For example, if the intended parents are using an embryo donor to have donated embryos implanted in a gestational surrogate, then an adoption will be necessary.
Q: Does Illinois allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?
A: The provisions of the Gestational Surrogacy Act make second-parent adoptions unnecessary.
However, Illinois does allow second-parent adoptions. If an arrangement does not comply with the Act and if the intended parents are not married, and one of them is not genetically related to the child, then the non-genetic parent would need to go through a second-parent adoption. If, under this same scenario, the intended parents are married, then they would go through a stepparent adoption.
Q: If intended parents cannot complete a second parent adoption, how can unmarried non-biological intended parents protect their parental rights?
A: I have not had a scenario in which the unrelated intended parent could not complete a second-parent adoption. However, if a second-parent adoption cannot be completed, the best way to protect the interests of the non-biological intended parent is to have already executed, prior to the conception of the child, a co-parenting agreement, drafted to reflect current Illinois law regarding custody and parentage. It is critical to have an experienced attorney analyze and deal with these issues before an embryo transfer takes place.
Q: What happens in cases where intended parents use a donor egg, sperm or embryo?
A: Under the Gestational Surrogacy Act, intended parents using a donor egg or a donor sperm go through same process as intended parents who are both genetically related to the child. However, if the intended parents are using a donor embryo in a surrogacy arrangement, and neither of them is related to the child, then the act does not apply and they will need to adopt the child.
Q: Are there any additional laws impacting same-sex surrogacy in Illinois?
A: No. Same-sex couples are treated the same, for purposes of surrogacy, as heterosexual couples.
Clearly, the Illinois Gestational Surrogacy Act sets up a framework that is very favorable to the surrogacy process and allows intended parents to achieve their goal of legal parentage in an Illinois surrogacy as efficiently as possible. If you are interested in surrogacy in Illinois, please reach out to our surrogacy specialists at 1-800-875-2229.
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The information presented in this article should not be taken as legal advice. Surrogacy laws in Illinois and other states are always subject to change, so we encourage intended parents and prospective surrogates to talk with an experienced surrogacy attorney in Illinois to learn more about the current state of surrogacy laws.