Child Surrogacy Laws in Illinois

 Posted on October 27, 2014 in Family Law

Surrogacy agreements are legal agreements signed by a woman who agrees to carry a child (the “surrogate”) on the behalf of another person or couple (the “intended parents”). In the United States, child surrogacy is a common practice, and over 2,000 surrogate babies will be born in the U.S. this year. The confusions about what is an enforceable or unenforceable surrogacy agreement are typically complicated by the diverse range of opinions about surrogacy. These ranging opinions are often illustrated through the different state laws that govern and address surrogacy agreements.

A recent case in the news about a Connecticut surrogate illustrates how the different state laws can affect whether a surrogacy agreement is enforceable or unenforceable. In this case, a Connecticut woman was a surrogate to a child that was created with the intended father's sperm and an anonymous donor's egg. During a routine ultrasound when she was five months pregnant, it was discovered that the child she was carrying had heart defects, a cleft palate, and a brain cyst. The intended parents requested that the surrogate abort the child, and even offered $10,000 as incentive. Instead of terminating the pregnancy, the woman left Connecticut, where surrogacy agreements are enforceable, and moved to Michigan. She did this because in Michigan, surrogacy agreements are not enforceable. After giving birth to the child in Michigan, the surrogate was listed on the child's birth certificate as the child's mother, even though she was not genetically connected to the child.

Illinois Law and Surrogacy

Illinois law allows surrogacy agreements to be entered into, but places significant requirements and restrictions in order for such agreements to be enforceable. Before a surrogacy agreement is signed and becomes enforceable in Illinois, all parties to the agreement must undergo psychological and medical screenings. All surrogates must be at least 21 years of age when they enter into surrogacy agreements. Surrogates must also have given birth at least once before agreeing to be a surrogate and should be represented by an independent attorney who is paid for by the intended parents.

Illinois law also places a restriction on the types of surrogacy that can be performed. Only gestational surrogacy is allowed, which is the process of inserting an embryo into the into the surrogate's uterus. The other option, which is not allowed under the Illinois surrogate law, involves the the surrogate directly providing the egg. Furthermore, the embryo that is created and then insetted must have been made with either the sperm or egg of one of the intended parents. Thus, while Illinois law does allow for surrogacy agreements to be enforceable, the public policy seems to be in favor of the agreements only if the surrogate child is not not genetically related to the surrogate carrier.