Reproductive Law Resources

Hear Julie Tavoso discuss legal considerations related to surrogacy arrangements: The number of couples and individuals experiencing infertility each year is staggering. Infertility treatments offer many the opportunity to build their families using reproductive technologies. Specifically, in-vitro fertilization transfers (IVF transfers) allow those wishing to participate in collaborative reproduction arrangements, such as egg donation, sperm donation or gestational surrogacy, the ability to do so. Further, for those who are medically unable to carry a child, an IVF transfer utilizing a gestational surrogate now gives couples and individuals the opportunity to have a child genetically related to them. IVF transfers with the use of an egg donor allow intended mothers, whose ovaries fail to produce eggs, the opportunity to become pregnant.

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Egg Donation/Oocyte donation

Egg Donation/Oocyte donation is a treatment for those who are incapable of producing viable eggs or are carriers of genetic diseases. Egg donation has become a frequently used method of assisted reproduction. Whether the donor egg is transferred directly to the intended mother or a surrogate, egg donation has provided intended parents with options previously unavailable.

Illinois Gestational Surrogacy Act

Effective January 2005, Illinois enacted the Gestational Surrogacy Act, making it one of the most progressive states in the U.S. for those individuals or couples (heterosexual or same-sex) wishing to build their families utilizing the services of a gestational surrogate. The Gestational Surrogacy Act provides that when a child is born through gestational surrogacy, the intended parent(s) have sole custody and full parental rights immediately upon the child’s birth. The effect of the statute is to prevent parental claims by a surrogate, and to prevent the need for an adoption proceeding to recognize the intended parents as the parents of the child.

The Gestational Surrogacy Act requires that one of the intended parents be genetically related to the child, regardless of whether the couple is married or unmarried. If an unmarried individual is engaging in a gestational surrogacy arrangement, the individual must provide his or her own genetic material for the creation of the embryo. The intended parents have full parental rights of any resulting child provided the requirements of the statute are met. If an egg donor or sperm donor is used to achieve the surrogacy, the donor has no legal relationship to the child.

Other requirements under the Gestational Surrogacy Act include:

Requirements for the gestational surrogate:

The gestational surrogate must be 21 years of age;
The gestational surrogate must have given birth to at least one child;
The gestational surrogate must have completed a medical and mental health evaluation;
The gestational surrogate must have undergone legal consultation with independent legal counsel regarding the terms and consequences of the gestational surrogacy agreement;
The gestational surrogate must have obtained a health insurance policy that extends throughout the duration of the pregnancy;
If the gestational surrogate is married, her husband must also agree to the terms of the gestational surrogacy agreement and surrender custody of the child to the intended parent(s) at the time of birth.

Requirements for the intended parent(s):

The intended parent(s) must have a medical need for the gestational surrogacy, as determined by a physician licensed to practice in Illinois;
The intended parent(s) must have completed a mental health evaluation;
The intended parent(s) must have undergone legal consultation with independent legal counsel.
A legal contract complying with the Illinois statute is a requirement prior to entering into any of these arrangements to clarify the intentions and to protect the rights of the parties. Donors are not awarded any parental rights to a child.
The statute does not impose a residency requirement.