Illinois is considered one of the most pro-surrogate states according to the Chicago Tribune in 2013. Gestational surrogacy has a special status under Illinois law, but requires that the intended parents be biologically related to the child while the surrogate is not biologically related to the child. While gestational surrogacy may be slightly more expensive and require additional reproductive assistance, the legal advantages of gestational surrogacy in Illinois often make it worthwhile.
Illinois Gestational Surrogacy Act
The Illinois Gestational Surrogacy Act, which became law on January 1, 2005, is a boon to people who are having trouble conceiving, when taken in combination with the advances in medical solutions for infertility.
The father with poor quality sperm now has a medical hope of achieving fertilization with a process referred to as ICSI which, by mitromanipulation, a single sperm is captured with a glass needle and injected directly into the egg.
If, despite medical efforts, there cannot be fertilization with the father’s sperm, the alternative is for an egg(s) to be fertilized with donor sperm. Similarly if the intended mother cannot produce good eggs, donor eggs can be used and fertilized with the father’s sperm in a test tube (in vitro fertilization) and the resulting pre-embryo(s) may be implanted in the intended mother so she actually delivers the child which is genetically hers and the father’s. If the intended mother is incapable of delivering a child (for example no uterus) then the services of a surrogate may be employed to carry and deliver the child.
Two Types of Surrogates
There are two types of surrogates. First there is the traditional surrogacy where it is the surrogate’s eggs that are fertilized by the intended father’s sperm through artificial insemination. She then carries the child and delivers. In gestational surrogacy the surrogate is not genetically related to the child. The embryo is implanted in her and she carries and delivers the child.
How does the Gestational Surrogacy Act facilitate having a child through surrogacy?
Before the Illinois Gestational Surrogacy Act there was no statutory law in Illinois governing surrogacy. As a matter of law the mother is presumed to be the woman out of whose body the child came, and if she is married, her husband is presumed to be the father. In order for the child to legally become the child of the intended parents, an adoption procedure was necessary to terminate the rights of the surrogate, and if she had a husband, to terminate the parental rights of her husband, and also to make the intended parents the legal parents of the child.
Under the Gestational Surrogacy Act documents (fill in forms) are filed with the Illinois Department of Public Health and a birth certificate is issued – all without adoption proceedings.
The difficult part before the law was passed was that ordinarily the surrogate is paid a fee for her services. Adoption judges had difficulty with the fee, because the Adoption Act prohibits “baby buying,” and on its face, it seemed to some judges that surrogacy was baby buying. The new Gestational Surrogacy Act does not prohibit the payment of money to the gestational surrogate.
What qualifies to be intended parents in gestational surrogacy?
The Act requires the intended parents to donate either the sperm or the egg and that the gestational surrogate makes no genetic contribution, that is, it is not the surrogate’s eggs that are fertilized. The process, therefore, requires in vitro (test tube) fertilization and implantation of the embryo(s) in the surrogate.
Gestational Surrogacy Act Major Features
- A physician must sign an affidavit that there is a medical need for the gestational surrogacy. In virtually every surrogacy arrangement in which I have been involved there was a medical need on the part of one of the parties, so this should not be an impediment.
- There must be a written gestational surrogacy contract. The Act states the provisions which must be contained in the contract.
- The intended parents need not be residents of Illinois.
Can I go through a surrogacy arrangement without a lawyer?
Yes, but it would be unwise. The procedure and its consequences are too significant to be left in the hands of untrained people. The procedure, including, of course, the drafting of the contract, should be done by a lawyer who is experienced in this area of the law.
The Gitlin Law Firm and Surrogacy Law
H. Joseph Gitlin Drafted Model Surrogacy Act
At the height of the media coverage of the Baby M case many states, including Illinois, wanted to address surrogacy through legislation. H. Joseph Gitlin was asked by an Illinois state senator to draft a model surrogacy act. It was drafted and introduced, but the concept of surrogacy was then too new, and not sufficiently understood, so the bill died in committee.
Head of ABA – Family Law Section, Genetics and Human Reproduction Committee
H. Joseph Gitlin founded and headed the ABA, Family Law Section, Genetics and Human Reproduction Committee, which among other things, addressed infertility problems as they related to the law. Joseph Gitlin also founded, and headed, an Illinois State Bar Association Task Force on genetics and human reproduction from 2005 – 2007. The Gitlin Law Firm has assisted scores of people in regard to surrogacy arrangements.