Gestational surrogacy describes the process in which a surrogate mother is implanted with an egg and sperm, or in some cases only sperm, of the intended parents. The surrogate mother then brings the baby to term, delivers the baby, and transfers parentage to the intended parents, usually in exchange for compensation from the intended parents. Illinois enacted the Gestational Surrogacy Act in 2005, which provides standardization and legal protection for all parties involved in a gestational surrogacy contract.
Requirements for a Surrogate Contract
In order to form a valid gestational surrogacy contract, the contract must be in writing and contain specific statutorily provided terms. The contract must be executed prior to any medical actions taken in furtherance of the surrogate arrangement. Any compensation promised under the contract must be held in a separate escrow account. Both parties must be represented by legal counsel at the time of the contract. In addition, both parties to the contract must meet the following requirements.
The surrogate mother must:
- Be 21 or older;
- Have previously given birth to at least one child;
- Have completed a physical and mental health status examination;
- Have consulted with independent legal counsel about rights and obligations under a gestational surrogacy contract; and
- Have obtained a health insurance policy that covers medical treatments and hospitalization during the term of her pregnancy and eight weeks afterwards.
The intended parent or parents must:
- Contribute at least half of the DNA makeup (gametes) of the intended child for implantation into the surrogate mother;
- Obtain a physician’s letter stating they have a medical need for the surrogate procedure and cannot have children on their own;
- Have completed a mental health evaluation; and
- Have consulted with independent legal counsel about his/her/their rights and obligations under a gestational surrogacy contract.
Rights and Obligations under a Surrogacy Contract
After a valid surrogacy agreement is signed, the intended parent(s) become the legal parents of the child upon the child’s birth. This means they have all decision making authority for the child, such as regarding the child’s medical care, where and how the child will be raised, and all other parental rights afforded to natural parents. The law contains a duty of support provision which states that if the intended parents back out of the surrogacy contract, they will still be legally obligated to provide financial support for the child.
If either party fails to comply with terms of the surrogate contract, specific rights and obligations of the parties are determined on a case-by-case basis in Illinois state court. Additionally, no legal action to contest a legal surrogacy shall be brought after the child turns one year old.
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The above discussed terms provide a general overview of current gestational surrogacy law in Illinois. They are by no means inclusive of the entire law. The entire law is detailed and there are many minor provisions in Illinois’ gestational surrogacy law that can affect an individual’s legal rights under these types of contracts. For more information on one’s legal rights under this type of surrogacy contract and on other types of unconventional family arrangements, we encourage you to contact an experienced Wheaton family law attorney.