A gestational surrogacy is substantially different from an adoption. A proper gestational surrogacy can clarify the rights and responsibilities of all parties to the contract and ensure a legally binding and enforceable arrangement. However,mistakes in a gestational surrogacy may make the current Illinois Gestational Surrogacy Act inapplicable, forcing courts to rely on older, less clear law if disputes arise. Representation by a qualified adoption or family law lawyer with experience in surrogacy can help minimize risks.
Surrogacy Information for Intended Surrogate Parents
This information is intended to give a broad overview of surrogacy from the perspective of intended parents. The focus is surrogacy in Illinois.
Role of The Gitlin Law Firm
The Gitlin Law Firm does not operate as a surrogacy clinic and does not make the medical arrangements for artificial insemination or invitro fertilization. This is the task of the intended parents. The Gitlin Law Firm does assist in the coordination of medical procedures between the intended parents and the surrogate when necessary.
Services of The Gitlin Law Firm
The services provided by The Gitlin Law Firm in surrogacy arrangements include:
- Meetings with the intended parents.
- Meetings with the surrogate.
- Drafting the surrogacy contract.
- Coordinating between the intended parents and the surrogate mother for medical and psychological exams.
- Coordinating the insemination or In vitro fertilization (IVF).
- Drafting and arguing a motion for declaratory judgment.
- Drafting pleadings, orders, etc. regarding the adoption proceedings and court appearances.
- Coordination with the hospital for transfer of the baby and attending to the transfer of the baby.
- Necessary correspondence, conference, telephone communications, etc.
Legal Problems of Surrogacy
The famous New Jersey case of Baby M made the subject of surrogacy a controversial legal and political issue. The two basic problems surrogacy has encountered since Baby M are:
- The payment to the surrogate for her services.
- The issue of whether the surrogate should have a certain amount of time after the birth of her child to change her mind and renege on the contract.
Fee to Surrogate
The objection to the fee to be paid to the surrogate comes from the adoption laws of all of our states. They prohibit “baby buying.” H. Joseph Gitlin has written articles and lectured on the distinction between paying a fee to a pregnant mother for the adoption of the child and contracting with a woman, before she is pregnant, for her services as a surrogate. The point is that neither the courts or legislatures have problems with surrogacy as long as no fee is paid to the surrogate.
Need For a Contract
It is desirable to have a contract, or a solid understanding, of what the rights and liabilities are of each party to the surrogacy arrangements even when no fee is being charged, or when the surrogate is a good friend, or relative.
The poet Robert Frost said, “Good fences make good neighbors,” and similarly, good contracts make for good relationships between people since it makes their understanding clear. That would be the basic purpose for the agreement.
Rights and Liabilities of the Parties
Where the surrogate is to be paid a fee it is essential that there be a written contract describing the rights and liabilities of the parties to the contract. (If the surrogate is a friend or relative, you may not want or need a contract.)
Right of Surrogate to Change Her Mind
Here the opponents of surrogacy take a page out of the adoption book. In adoptions, the birth mother always has a certain period of time (72 hours from the birth of the child in Illinois) in which to change her mind. Under Illinois adoption law a birth mother cannot give her consent to adoption until the 72 hours have passed.
Baby M Surrogacy Case
The resolution of the famous Baby M case was typical of the resolution of most surrogacy cases. The courts have not enforced the surrogacy contract, but instead, if the birth mother changes her mind and wants to keep custody of the child, the court will decide the case on the basis of what is in the best interest of the child. It was on that basis that the court, in the Baby M case, gave custody of the child to the intended parents.
Johnson v. Calvert Surrogacy Case
There was another, more recent case, Johnson v. Calvert, in California, in which the genetic material of the intended parents was used. The surrogate was not genetically related to the child. The sperm of the intended father and the eggs of the intended mother produced the child. The court placed emphasis on the fact that the child was not related to the surrogate mother in awarding the child to the genetic parents.
No Legal Guarantees
The short of it is that there are no legal guarantees, but if nothing else, the contract should assure those involved that they are not participating in any illegal act and the contract is probably enforceable.
Insemination and In vitro Fertilization
Medically there are two types of surrogacy procedures, artificial insemination of the surrogate, or in vitro fertilization. The procedure which is used depends on the nature of the infertility problem.
In Vitro Fertilization
In vitro fertilization (test tube babies) is a new medical technique. The first test tube baby was born in 1978. IVF with a surrogate can be creatively performed to meet any infertility problem.
- The intended mother can produce good eggs and the intended father has good sperm. The eggs can be removed from the intended mother and fertilized with the sperm of the intended father in a petri dish, and the fertilized ovum is implanted in the surrogate. The surrogate is thus not genetically related to the child and the child is 100% the genetic child of the intended parents.
- The intended mother cannot produce good eggs. The intended father has good sperm. In such situations the surrogate mother is artificially inseminated with the sperm of the intended father.
- The intended father does not have good sperm and the intended mother cannot produce good eggs. The surrogate can be inseminated with the sperm of a third party donor.
As can be seen from the above, other infertility problems can also be addressed by using invitro fertilization techniques.
Laws in Illinois Regarding Surrogacy
Except for the Illinois Gestational Surrogacy Act, which took effect in January 2005, Illinois has no other statutory law or case law in regards to surrogacy. For a discussion of gestational surrogacy see H. Joseph Gitlin’s article, “Illinois Becomes Surrogacy Friendly.”
Briefly, in gestational surrogacy the egg of the surrogate is not involved. She is merely the gestator for the embryo (fertilized egg) which has been transferred into her uterus. In a gestational surrogacy the genetic material of at least one of the intended parents must be used.
In traditional surrogacy, the egg of the surrogate is artificially inseminated with the sperm of the intended father. For traditional surrogacy, since there are no laws controlling it, we are sailing on uncharted waters except for the experience of the lawyer in handling Illinois traditional surrogacy cases.
Declaratory Judgment: the Contract Declared Valid
After the surrogate mother and her husband have consulted with their lawyer and the agreement is signed by the parties involved, the agreement, as drafted, is still not binding. The agreement will provide that it is not a viable contract, despite the signatures, until a court, in declaratory judgment proceedings, approves the contract.
The reason for this is that paying money in consideration of receiving a child is illegal. In the declaratory judgment procedure we ask the court to find that the intended payments to the surrogate are for her services in becoming inseminated, carrying the child and delivering the child — and not for the child.
After entry of a declaratory judgment approving the contract, insemination, or IVF, starts.
As soon as the child is born a petition for adoption should be filed. The consent of the surrogate mother’s husband (if she is married) may be taken any time after conception.
The surrogate mother’s consent cannot be taken until more than 72 hours pass from the time of birth. We attempt to have the intended parents take the infant as soon as it is discharged by the hospital, but some hospitals require a “Turn Over Order” from the court before releasing the child. This, ordinarily, should not delay the intended parents taking the child for more than approximately 24 hours after the child would otherwise be discharged from the hospital.
The intended parents and the child must make either one or two court appearances in the adoption proceeding. The decree of adoption is usually entered about six weeks after you take the child.
Literature on Surrogacy
The best work describing the surrogacy process in terms of the dynamics of the problems and promises involved is Between Strangers: Surrogate Mothers, Expectant Fathers and Brave New Babies by Lori Andrews. It is published by Harper and Row. Lori Andrews was one of the members of the committee that drafted the ABA Family Law Section Model Surrogacy Act.