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Is Gestational Surrogacy the Right Option for You?

Posted on in Adoption

gestational surrogacy, Illinois Gestational Surrogacy Act, Kane County family law attorney, surrogacy agreement, Illinois surrogacy lawIn a perfect world, every couple that wanted a child would have one. And while infertility issues sometimes makes pregnancy impossible, modern technology now offers couples, with the time and money, an expanding array of options. One possibility is gestational surrogacy.

With gestational surrogacy – unlike traditional surrogacy – the surrogate mother is not the egg donor. That is an important distinction, because Illinois surrogacy law only pertains to gestational surrogacy agreements. The Illinois Gestational Surrogacy Act governs this process and makes it easier for couples to become parents in this non-traditional way.

The law also ensures the legal status of children born by gestational surrogacy. In other words, the state wants children to know who their parents are. The law serves this purpose in two ways. First, it requires both the intended parents and the surrogate mother to sign certified statements consenting to the parental rights of the intended parents. Second, it also requires a licensed and practicing Illinois physician to sign a certified statement asserting that the intended parents are indeed the child’s parents.

If those two steps are followed, the intended parents gain their parental rights when the child is born. Their names are included on the birth certificate, and the surrogate mother cannot seek custody.

Legal Requirements for Gestational Surrogates and Intended Parents

Gestational surrogates serve an important role, but it is also a difficult one. That is why not just anyone can be a gestational surrogate. The law sets forth certain requirements that surrogates must meet by the time the surrogacy agreement is executed:

  1. She must be at least 21 years old;
  2. This cannot be her first child; she must have given birth at least once;
  3. She must successfully complete both a medical and a mental health evaluation;
  4. She must consult an attorney about the terms of the agreement and its resulting legal consequences, such as the fact that she cannot seek custody of the child she carries; and
  5. She must have a satisfactory health insurance policy.

The law also establishes requirements for the intended parents: 

  1. They must have a medical need for the gestational surrogacy that is confirmed by a qualified physician;
  2. They must make a biological contribution to the pre-embryo that the gestational surrogate will attempt to carry to term;
  3. They must complete a mental health evaluation; and
  4. They must consult an attorney about the terms of the agreement and its resulting legal consequences, such as the fact that they will be considered the child’s legal parents.

(Note that “intended parents” can be just one intended parent. You do not have to be married or in a relationship to have a child by gestational surrogacy.)

If you are a prospective gestational surrogate or an intended parent, then you need an experienced Kane County family law attorney to help you navigate the gestational surrogacy process. We will help you understand your rights and responsibilities under the law, as well as the legal consequences of entering into a gestational surrogacy agreement. Contact us today for a consultation. We can assist those in the St. Charles area.
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