Answers to Infertility: Surrogacy
- Jennifer M. Ascher

“Surrogacy” literally means “help.” In reproductive medicine, though, it has come to have a different meaning: it is when a woman gets pregnant on behalf of someone who herself can not carry a pregnancy and have a baby. Surrogacy is becoming a viable option for women who are unable to bear a child to term. This article will address gestational surrogacy as opposed to traditional surrogacy. Whether you are interested in expanding your family or helping someone else to expand theirs, Illinois currently has one of the most proactive surrogacy statutes in the country. Historically, the law has presumed that a woman who gives birth to a child is the mother of the child and her husband (if she is married) is the father of the child. In Illinois, The Illinois Parentage Act of 1984 (the “Act”), 750 ILCS 45/1 et. seq., defines a natural mother as the woman having given birth to the child or as otherwise defined in the Act. A gestational carrier is a woman who carries a child conceived through the process of in-vitro fertilization. The child is not biologically related to her. This is different from a traditional surrogate who supplies the egg and is the biological mother of the child she delivers. With gestational surrogacy, donated eggs are harvested from the intended mother, embryos are then formed in the laboratory, often times using the intended father’s sperm. Some or all of the resulting embryos are then transferred to the surrogate’s uterus. Ideally, the surrogate then carries the child for the remainder of the pregnancy and gives birth to a healthy child for the intended parents. The Illinois legislature amended the Illinois Parentage Act to permit intended parents’ names to be placed on a child’s original birth certificate. 750 ILCS 45/6. However, in order for a woman who has not given birth to a child to be placed on the original birth certificate, several requirements must be met. The Act mandates that the intended father, intended mother, the surrogate, and the surrogate’s husband, if any, must sign voluntary acknowledgments and denials of parentage on forms prescribed by the Illinois Department of Public Health (IDPH). Additionally, a physician licensed to practice medicine in Illinois must sign a statement that the child being carried by the surrogate mother is the biological child of the egg and sperm donors, and that neither the surrogate mother nor her husband, if any, is a biological parent of the child being carried by the surrogate mother. All of the surrogate parentage statements must be executed prior to the birth of the child and witnessed by competent adults not parties to the arrangement. If the forms are delivered to IDPH, the surrogate’s medical records will contain the requisite information, and the intended parents’ names will be placed directly on the original birth certificate. Failure to complete and file all required statements with IDPH will result in the birth certificate being prepared with the surrogate woman named as the mother and her husband, if any, named as father. The intended parents’ names will not be shown on the birth certificate. It is important to remember that these provisions to the Illinois Parentage Act are not applicable if the surrogate mother delivers the baby outside of Illinois. Many other factors must be taken under advisement when considering alternative methods to expanding your family. For example, intended parents often desire to enter into an enforceable surrogacy agreement. However, Illinois has no specific legislation addressing the enforceability of such arrangements. A few states, including Arizona, Michigan, and New York, prohibit surrogacy. There are other states, such as Virginia and Florida, that provide detailed laws regarding the need for valid agreements between the parties before engaging in gestational carrier arrangements. In the absence of explicit legislation, Illinois has given tacit approval of such arrangements by recognizing that such arrangements exist in the Illinois Parentage Act of 1984, and more importantly by providing a mechanism whereby intended parents’ names can appear on their child’s original birth certificate. Given the lack of specific legislation in Illinois, intended parents should proceed with caution before entering into a surrogacy arrangement. Intended parents and potential surrogates should consider psychological evaluation and testing and/or counseling and should enter into a detailed legal agreement addressing the various legal issues that might arise throughout the course of the surrogacy arrangement and evidencing the intent of all the parties in the event of a dispute. In any surrogacy arrangement, the intended parents will not have control over the pregnancy. The agreement can set realistic guidelines (such as the surrogate agrees not to drink alcoholic beverages, agrees to follow instructions of the physician, etc.), while at the same time recognizing and respecting the surrogate’s control over her body. Intended parties may also wonder whether they are permitted to compensate a surrogate for carrying their child. Paid situations are common, but the compensation should reflect the payments for the time, effort, and inconvenience of pregnancy as opposed to actually paying for the child. The Adoption Compensation Prohibition Act may limit the type of payment. 720 ILCS 525/0.01, et. seq. A gestational surrogacy arrangement may be an option to expanding your family. Of course, a myriad of legal issues surround any surrogacy agreement, and it is highly advisable to retain counsel if you are determined to engage in the life-altering journey of surrogacy. For more information regarding this article, please contact the author or any Sorling attorney who practices family law by clicking: Jennifer M. Ascher www.sorlinglaw.com/practice-family.htm Click here to review the Sorling disclaimer: http://www.sorlinglaw.com/About-Disclaimers.htm

<< Back to Sorling Client Alert