Gestational Surrogacy: Not Quite a Form Of Adoption

Adoptions represent a wonderful opportunity to bring a family together; however, they can also present various complex legal issues. When an adoption is the result of surrogacy, an additional set of legal issues come into play. Moreover, not all forms of surrogacy involve adoption. One example is gestational surrogacy.

Gestational Surrogacy and the Law in Illinois

In Illinois, surrogacy is governed by state statute. While the general presumption under Illinois law is that the woman who gives birth to a child is the child’s mother, under this law in the case of surrogacy the “intended mother(s)” and/or “intended father(s)” become the child’s parent(s) upon birth.

The “intended parents” have sole custody and full parental rights as soon as the child is born. The gestational surrogate and her spouse do not retain any parental rights upon birth.

Gestational surrogacy differs from traditional surrogacy in that gestational surrogacy is limited to “the process by which a woman attempts to carry and give birth to a child created through in vitro fertilization using the gamete or gametes of at least one of the intended parents and to which the gestational surrogate has made no contribution.” The statute provides that the spouse of the intended parent providing the gamete is also an intended parent.

Requirements to be a Gestational Surrogate

The Illinois statute puts strict requirements in place regarding who can and cannot be a gestational surrogate. These requirements must be met at the time the surrogacy contract is executed. She must:

  • Be 21 or older;
  • Have given birth to at least one child;
  • Complete a medical and mental health evaluation;
  • Have undergone legal consultation with an attorney regarding the terms of the contract and any potential legal consequences; and
  • Have obtained a health insurance policy that covers major medical treatments and hospitalization that will extend 8 weeks after the birth of the child.

Matters of Money and Gestational Surrogacy

The statute defines “compensation” as “payment of any valuable consideration for services in excess of reasonable medical and ancillary costs.” Gestational surrogacy contracts are allowed to provide for the payment of compensation to the gestational surrogate. These funds must be placed in escrow with an independent escrow agent before any medical procedure occurs. This differs from the traditional surrogacy method in which the surrogate provides genetic material. Where a surrogate provides genetic material, allowing compensation may be seen as “baby buying.” In gestational surrogacy, however, compensation to the surrogate is expressly allowed. Traditional surrogacy is governed by the Adoption Act, not the Gestational Surrogacy Act.

Call Us Today

If you are considering adoption, please contact an experienced Illinois family law attorney at Sullivan Taylor, Gumina & Palmer, P.C. to schedule an appointment. Together we can discuss the details of your situation. Call (630)665-7676 today.