Illinois is one of a small number of states that has passed a law on gestational surrogacy. The law provides clear and consistent standards and requirements, which when met, safeguards and protects intended parents and gestational surrogates and establishes clearly parentage rights of the children born through these arrangements. The law applies to gay, straight and single intended parents. Neither the intended parents nor the gestational surrogate must reside in the State of Illinois. In order to invoke the protections of the law, the child must be delivered within the State of Illinois and the requirements of the Illinois Gestational Act and the Illinois Parentage Act must be met.
Specifically, the law requires the gestational surrogate meet the following criteria:
1. She must be at least 21 years of age;
- She has given birth to at least one child;
- She has completed a medical evaluation;
- She has completed a mental health evaluation;
- She has undergone legal consultation with independent legal counsel;
- She currently has or has obtained a health insurance policy hat covers major medical treatment and hospitalization for the duration of the pregnancy and eight weeks after delivery.
Intended Parents must meet the following criteria under the Illinois statute:
- Intended parent(s) will contribute at least one of the gametes;
- Intended parents must have a medical need for the gestational surrogacy as evidenced by a licensed physician’s affidavit;
- Intended parent(s) has completed a mental health evaluation; and
- Intended Parent(s) has undergone legal consultation with independent legal counsel;
The law also sets forth some specific requirements of the contract including that it be executed prior to the start of medications.
With respect to establishing parentage, the Illinois Parentage Act of 1984 provides for the extrajudicial establishment of parentage prior to the birth of the child. The Act requires the filing of certifications by each of the attorneys representing the intended parents and the gestational surrogate, an Illinois licensed physician who certifies that the child being carried by the gestational surrogate is the biological child of at least one of the intended parents, and the gestational surrogate and her spouse (if any). By filing these certifications with the Illinois Department of Vital Records and with the hospital where delivery will take place prior to birth, the names of the intended parents are placed on the initial birth certificate and no further court filings or hearings are required either before or after delivery.
Candace O’Brien attended Michigan State University and majored in Political Science/Pre Law and received her Juris Doctor from Thomas Cooley Law School. Candace has been a member of the Illinois Bar since 1992. Candace has helped hundreds individuals and couples, gay and straight, form their families through adoption and surrogacy. The Law Office of Candace O’Brien specializes in Assisted Reproductive Technology Law and provides legal consultation and advice to egg donor and surrogacy agencies, fertility clinics, intended parents, surrogates and egg donors on all aspects of forming families through surrogacy and egg donation including drafting and reviewing of surrogacy and egg donation agreements.