People choose to start or expand their families in many different ways. Partners often have children together and many families choose adoption. However, there is another common way to bring a child into the home, and that is through surrogacy. In a surrogacy arrangement, a woman who will not ultimately be the mother of the child carries the baby to term for the intended parents.
While this is often a beneficial arrangement for LGBT partners or women who cannot carry children, there are different types of surrogacy, each with its own risks and relevant laws.
Traditional Versus Gestational
In a traditional surrogacy, the woman carrying the baby is also the genetic mother of the child. The embryo was created using her own egg and implanted sperm. However, the purpose of the arrangement is that she will relinquish the child to the intended parents. This is often done through an adoption procedure where the genetic mother gives up her rights to the child.
The risk of this type of surrogacy is obvious: What happens if the genetic mother changes her mind and does not want to give up her rights to the baby? If this happens, there can be a lengthy court battle in which neither parent is happy with the outcome. This is why many states ban traditional surrogacy completely.
Gestational surrogacy is when the woman carrying the baby is not genetically related to the child at all. An embryo is created using a donated egg and sperm, one of which is from the intended parent. The embryo is then implanted in the surrogate who carries the baby to term and relinquishes him or her to the intended parents at birth. If the surrogacy contract follows state law and all elements are completed, no adoption procedure is necessary. The intended parents are put on the birth certificate and have custody of the child right away.
There are still aspects of gestational surrogacy that can go wrong, but it is often considered less risky than traditional surrogacy.
Illinois Law Only Protects Gestational Surrogacy
Illinois law is friendly toward surrogacy contracts; however, the Illinois Gestational Surrogacy Act requires specific elements for the relationship to be protected under the law.
Certain requirements include:
- It must be a gestational and not traditional surrogacy;
- One of the intended parents must contribute genetic material, such as the egg or the sperm;
- The intended parents must have a medical need for gestational surrogacy, which is officially evidenced by a physician;
- The intended parents must speak with an attorney regarding a surrogacy arrangement in order to fully understand the potential risks; and
- The intended parents must undergo physical and mental health evaluations.
The surrogate must also meet certain elements such as being at least 21 years old and having already had one healthy pregnancy.
If all of the elements of a gestational surrogacy agreement are fulfilled, then upon the birth of the child, the intended parents have full and sole custody of the child. The child is considered the legitimate child of both intended parents under the law.
Speak with a Naperville Family Law Attorney Today
Looking into surrogacy can be scary and exciting. If you are considering a gestational surrogate as a way to start or grow your family, call an experienced attorney. Learning about Illinois law surrounding this arrangement and whether you qualify is the first step. A knowledgeable DuPage County family law attorney can also explain more about adoption, if you are interested in other ways to have a child.