Illinois Surrogacy Laws

Surrogacy is Legal in Illinois

In Illinois, gestational surrogacy is permitted via statute and allows intended parents(s) to be declared the legal parent(s) upon birth of the child as long as one intended parent is a genetic contributor to the child. As such, legal parentage in Illinois is determined upon birth and intended parents can obtain a birth certificate from the Vital Records department directly. If the statute’s requirements are not met, or if a court order is needed for other reasons, then parentage may be determined via a pre- or post-birth parentage order. Finally, if both egg donor and sperm donor are used, parental rights would be obtained via a parent adoption proceeding.

Illinois Surrogacy Act

Illinois is one of the most surrogacy-friendly states. Because of the existing regulation, children from surrogacy have protected rights, and the medical procedures involved have higher safety standards in accordance with the Illinois Gestational Surrogacy Act. According to Illinois, the purpose of the Gestational Surrogacy Act is defined in (750 ILCS 47/5)Sec. 5:

Sec. 5. Purpose. The purpose of this Act is 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. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of this State. (Source: P.A. 93-921, eff. 1-1-05.)

Intended Parent Requirements in Illinois

Intended parents may be heterosexual or same-sex couples, single individuals, and those with fertility challenges who have met the following requirements of this Act if he, she, or they have met the following requirements at the time the gestational surrogacy contract is executed:

• Of the two parents, at least one must contribute genetically; either the egg or the sperm must come from the intended parents.
• Intended parents are required to have a medical need for the gestational surrogacy as evidenced by a qualified physician’s affidavit attached to the gestational surrogacy contract and as required by the Illinois Parentage Act of 2015;
• Intended parents are required to complete mental health evaluations
• Intended parents are required to consult with legal counsel regarding any potential legal ramifications of a prospective surrogacy agreement

Gestational Surrogate Requirements in Illinois

To meet the Illinois requirements, a gestational carrier must meet the following requirements at the time the surrogacy contract is executed:

1. she is at least 21 years of age;
2. she has given birth to at least one child;
3. she has completed a medical evaluation;
4. she has completed a mental health evaluation;
5. she has undergone legal consultation with an independent legal counsel regarding the terms of the gestational surrogacy contract and the potential legal consequences of the gestational surrogacy; and
6. she has obtained a health insurance policy that covers major medical treatments and hospitalization and the health insurance policy has a term that extends throughout the duration of the expected pregnancy and for 8 weeks after the birth of the child; provided, however, that the policy may be procured by the intended parents on behalf of the gestational surrogate pursuant to the gestational surrogacy contract.

Important Facts to Know About Illinois Surrogacy Law

1) The Illinois Surrogacy Act Protects Gestational Surrogacy, Not Traditional Surrogacy

Under Illinois surrogacy law, the existing language only applies to gestational surrogacy, not traditional surrogacy. If you want the law on your side with regards to a surrogacy agreement in Illinois, it must be a gestational surrogacy agreement.

What does that mean? Modern surrogacy (gestational surrogacy) is achieved with a gestational surrogate, a woman who undergoes in vitro fertilization (IVF) and carries an embryo that was created with the intended mother or donor’s egg and the intended father or donor’s sperm. The surrogate shares no DNA with the child she is carrying. Because modern surrogacy does not involve a genetic link between the surrogate and the baby, it has become a legally safe and popular means of starting or growing a family.

2) The Court is Not Involved with the Process  

Under the Illinois Gestational Surrogacy Act, the court system is removed from the surrogacy arrangement and parentage is instead established via an administrative process through Vital Records. To do so, it is important to have the proper certified statements signed and filed with the appropriate entities prior to birth. These certifications include statements by the intended parents and the gestational carrier (and her spouse) as to parentage of the child as well as a statement from the fertility doctor. This ensures that when the child is born, both intended parents have full rights to the child, and that their names appear on the child’s birth certificate. If the statutory requirements are not met, parentage can still be determined post-birth via a court order as necessary.

3) It makes no Reference to LGBT Parents  

Although the Illinois Gestational Surrogacy Act does not explicitly mention LGBTQIA+ intended parents, it does define Intended Parent to mean: “a person or persons who enters into a gestational surrogacy contract with a gestational surrogate pursuant to which he or she will be the legal parent of the resulting child.” There is later language that references a married couple as both husband and wife, however in practice gestational surrogacy has been available and safe for LGBTQIA+ intended parents in Illinois. LGBTQIA+ intended parents can undertake the same statutory administrative process for gestational surrogacy and will be listed as “co-parent” and “co-parent” on the child’s final birth certificate.

More Facts About Illinois Surrogacy Laws

Do Intended Parents Have To Be A Resident of Illinois?

No. Intended parents do not need to be Illinois residents for the Act to carry out a surrogacy journey in Illinois.

Does A Surrogate Have To Be A Resident of Illinois?

Gestational Carriers are not required to reside in Illinois, but for the act to cover their agreement, they must give birth within the state.

Do Intended Parents Have To Be Married?

No. Intended parents do not need to be married.

Surrogacy Agency Requirements

Agencies facilitating surrogacy arrangements must be licensed and adhere to regulatory guidelines.

Compensation

Reasonable gestational carrier compensation for medical, legal, and living expenses is allowed, but altruistic surrogacy is also an option.

What Is a Surrogacy Agreement?

A comprehensive, written gestational surrogacy agreement is mandatory. It outlines expectations, compensation, responsibilities, and potential contingencies.

Pre-Birth Orders

Illinois permits pre-birth orders that establish the intended parents’ legal parental rights, usually before the child’s birth.

Post-Birth Processes

Post-birth court orders may be necessary if the pre-birth order process isn’t followed, ensuring legal parentage.

What Is A Legal Parentage?

The legal parentage process is the critical step whereby parentage is determined. Depending on where your child is born, the birth parentage orders will be completed either pre- or post-birth.

Parental Rights Waiver

The gestational carrier and her spouse (if applicable) must waive any parental rights they may have to the child.

Protection Against Exploitation  

Illinois law prohibits coercive or exploitative practices in surrogacy agreements.

Illinois is a surrogacy friendly state. Learn more about becoming a surrogate in Illinois.