PocketLaw | Illinois Compiled Statutes | Gestational Surrogacy Act.

Gestational Surrogacy Act.

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(750 ILCS 47/1)

Sec. 1. Short title. This Act may be cited as the Gestational Surrogacy Act.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/5)

Sec. 5. Purpose. The purpose of this Act is to establish consistent standards and procedural safeguards for the protection of all parties involved in a gestational surrogacy contract in this State and to confirm the legal status of children born as a result of these contracts. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of this State.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/10)

Sec. 10. Definitions. As used in this Act:

"Compensation" means payment of any valuable consideration for services in excess of reasonable medical and ancillary costs.

"Donor" means an individual who contributes a gamete or gametes for the purpose of in vitro fertilization or implantation in another.

"Gamete" means either a sperm or an egg.

"Gestational surrogacy" means 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 genetic contribution.

"Gestational surrogate" means a woman who agrees to engage in a gestational surrogacy.

"Gestational surrogacy contract" means a written agreement regarding gestational surrogacy.

"Health care provider" means a person who is duly licensed to provide health care, including all medical, psychological, or counseling professionals.

"Intended parent" means a person or persons who enters into a gestational surrogacy contract with a gestational surrogate pursuant to which he or she will be the legal parent of the resulting child. In the case of a married couple, any reference to an intended parent shall include both husband and wife for all purposes of this Act. This term shall include the intended mother, intended father, or both.

"In vitro fertilization" means all medical and laboratory procedures that are necessary to effectuate the extracorporeal fertilization of egg and sperm.

"Medical evaluation" means an evaluation and consultation of a physician meeting the requirements of Section 60.

"Mental health evaluation" means an evaluation and consultation of a mental health professional meeting the requirements of Section 60.

"Physician" means a person licensed to practice medicine in all its branches in Illinois.

"Pre-embryo" means a fertilized egg prior to 14 days of development.

"Pre-embryo transfer" means all medical and laboratory procedures that are necessary to effectuate the transfer of a pre-embryo into the uterine cavity.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/15)

Sec. 15. Rights of Parentage.

(a) Except as provided in this Act, the woman who gives birth to a child is presumed to be the mother of that child for purposes of State law.

(b) In the case of a gestational surrogacy satisfying the requirements set forth in subsection (d) of this Section:

(1) the intended mother shall be the mother of the child for purposes of State law immediately upon the birth of the child;
(2) the intended father shall be the father of the child for purposes of State law immediately upon the birth of the child;
(3) the child shall be considered the legitimate child of the intended parent or parents for purposes of State law immediately upon the birth of the child;
(4) parental rights shall vest in the intended parent or parents immediately upon the birth of the child;
(5) sole custody of the child shall rest with the intended parent or parents immediately upon the birth of the child; and
(6) neither the gestational surrogate nor her husband, if any, shall be the parents of the child for purposes of State law immediately upon the birth of the child.

(c) In the case of a gestational surrogacy meeting the requirements set forth in subsection (d) of this Section, in the event of a laboratory error in which the resulting child is not genetically related to either of the intended parents, the intended parents will be the parents of the child for purposes of State law unless otherwise determined by a court of competent jurisdiction.

(d) The parties to a gestational surrogacy shall assume the rights and obligations of subsections (b) and (c) of this Section if:

(1) the gestational surrogate satisfies the eligibility requirements set forth in subsection (a) of Section 20;
(2) the intended parent or parents satisfy the eligibility requirements set forth in subsection (b) of Section 20; and
(3) the gestational surrogacy occurs pursuant to a gestational surrogacy contract meeting the requirements set forth in Section 25.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/20)

Sec. 20. Eligibility.

(a) A gestational surrogate shall be deemed to have satisfied the requirements of this Act if she has met the following requirements at the time the gestational surrogacy contract is executed:

(1) she is at least 21 years of age;
(2) she has given birth to at least one child;
(3) she has completed a medical evaluation;
(4) she has completed a mental health evaluation;
(5) she has undergone legal consultation with independent legal counsel regarding the terms of the gestational surrogacy contract and the potential legal consequences of the gestational surrogacy; and
(6) she has obtained a health insurance policy that covers major medical treatments and hospitalization and the health insurance policy has a term that extends throughout the duration of the expected pregnancy and for 8 weeks after the birth of the child; provided, however, that the policy may be procured by the intended parents on behalf of the gestational surrogate pursuant to the gestational surrogacy contract.

(b) The intended parent or parents shall be deemed to have satisfied the requirements of this Act if he, she, or they have met the following requirements at the time the gestational surrogacy contract is executed:

(1) he, she, or they contribute at least one of the gametes resulting in a pre-embryo that the gestational surrogate will attempt to carry to term;
(2) he, she, or they have a medical need for the gestational surrogacy as evidenced by a qualified physician's affidavit attached to the gestational surrogacy contract and as required by the Illinois Parentage Act of 2015;
(3) he, she, or they have completed a mental health evaluation; and
(4) he, she, or they have undergone legal consultation with independent legal counsel regarding the terms of the gestational surrogacy contract and the potential legal consequences of the gestational surrogacy.

(Source: P.A. 99-763, eff. 1-1-17.)

(750 ILCS 47/25)

Sec. 25. Requirements for a gestational surrogacy contract.

(a) A gestational surrogacy contract shall be presumed enforceable for purposes of State law only if:

(1) it meets the contractual requirements set forth in subsection (b) of this Section; and
(2) it contains at a minimum each of the terms set forth in subsection (c) of this Section.

(b) A gestational surrogacy contract shall meet the following requirements:

(1) it shall be in writing;
(2) it shall be executed prior to the commencement of any medical procedures (other than medical or mental health evaluations necessary to determine eligibility of the parties pursuant to Section 20 of this Act) in furtherance of the gestational surrogacy:

(i) by a gestational surrogate meeting the eligibility requirements of subsection (a) of Section 20 of this Act and, if married, the gestational surrogate's husband; and
(ii) by the intended parent or parents meeting the eligibility requirements of subsection (b) of Section 20 of this Act. In the event an intended parent is married, both husband and wife must execute the gestational surrogacy contract;

(3) each of the gestational surrogate and the intended parent or parents shall have been represented by separate counsel in all matters concerning the gestational surrogacy and the gestational surrogacy contract;
(3.5) each of the gestational surrogate and the intended parent or parents shall have signed a written acknowledgement that he or she received information about the legal, financial, and contractual rights, expectations, penalties, and obligations of the surrogacy agreement;
(4) if the gestational surrogacy contract provides for the payment of compensation to the gestational surrogate, the compensation shall have been placed in escrow with an independent escrow agent prior to the gestational surrogate's commencement of any medical procedure (other than medical or mental health evaluations necessary to determine the gestational surrogate's eligibility pursuant to subsection (a) of Section 20 of this Act); and
(5) it shall be witnessed by 2 competent adults.

(1) the express written agreement of the gestational surrogate to:

(i) undergo pre-embryo transfer and attempt to carry and give birth to the child; and
(ii) surrender custody of the child to the intended parent or parents immediately upon the birth of the child;

(2) if the gestational surrogate is married, the express agreement of her husband to:

(i) undertake the obligations imposed on the gestational surrogate pursuant to the terms of the gestational surrogacy contract;
(ii) surrender custody of the child to the intended parent or parents immediately upon the birth of the child;

(3) the right of the gestational surrogate to utilize the services of a physician of her choosing, after consultation with the intended parents, to provide her care during the pregnancy; and
(4) the express written agreement of the intended parent or parents to:

(i) accept custody of the child immediately upon his or her birth; and
(ii) assume sole responsibility for the support of the child immediately upon his or her birth.

(d) A gestational surrogacy contract shall be presumed enforceable for purposes of State law even though it contains one or more of the following provisions:

(1) the gestational surrogate's agreement to undergo all medical exams, treatments, and fetal monitoring procedures that the physician recommended for the success of the pregnancy;
(2) the gestational surrogate's agreement to abstain from any activities that the intended parent or parents or the physician reasonably believes to be harmful to the pregnancy and future health of the child, including, without limitation, smoking, drinking alcohol, using nonprescribed drugs, using prescription drugs not authorized by a physician aware of the gestational surrogate's pregnancy, exposure to radiation, or any other activities proscribed by a health care provider;
(3) the agreement of the intended parent or parents to pay the gestational surrogate reasonable compensation; and
(4) the agreement of the intended parent or parents to pay for or reimburse the gestational surrogate for reasonable expenses (including, without limitation, medical, legal, or other professional expenses) related to the gestational surrogacy and the gestational surrogacy contract.

(e) In the event that any of the requirements of this Section are not met, a court of competent jurisdiction shall determine parentage based on evidence of the parties' intent.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/30)

Sec. 30. Duty to support.

(a) Any person who is considered to be the parent of a child pursuant to Section 15 of this Act shall be obligated to support the child.

(b) The breach of the gestational surrogacy contract by the intended parent or parents shall not relieve such intended parent or parents of the support obligations imposed by this Act.

(c) A gamete donor may be liable for child support only if he or she fails to enter into a legal agreement with the intended parent or parents in which the intended parent or parents agree to assume all rights and responsibilities for any resulting child, and the gamete donor relinquishes his or her rights to any gametes, resulting embryos, or children.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/35)

Sec. 35. Establishment of the parent-child relationship.

(a) For purposes of the Illinois Parentage Act of 2015, a parent-child relationship shall be established prior to the birth of a child born through gestational surrogacy if, in addition to satisfying the requirements of Articles 2 and 3 of the Illinois Parentage Act of 2015, the attorneys representing both the gestational surrogate and the intended parent or parents certify that the parties entered into a gestational surrogacy contract intended to satisfy the requirements of Section 25 of this Act with respect to the child.

(b) The attorneys' certifications required by subsection (a) of this Section shall be filed on forms prescribed by the Illinois Department of Public Health and in a manner consistent with the requirement of the Illinois Parentage Act of 2015.

(Source: P.A. 99-85, eff. 1-1-16.)

(750 ILCS 47/40)

Sec. 40. Immunities. Except as provided in this Act, no person shall be civilly or criminally liable for non-negligent actions taken pursuant to the requirements of this Act.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/45)

Sec. 45. Noncompliance. Noncompliance by the gestational surrogate or the intended parent or parents occurs when that party breaches a provision of the gestational surrogacy contract.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/50)

Sec. 50. Effect of Noncompliance.

(a) Except as otherwise provided in this Act, in the event of noncompliance with the requirements of subsection (d) of Section 15 of this Act, a court of competent jurisdiction shall determine the respective rights and obligations of the parties.

(b) There shall be no specific performance remedy available for a breach by the gestational surrogate of a gestational surrogacy contract term that requires her to be impregnated.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/55)

Sec. 55. Damages.

(a) Except as expressly provided in the gestational surrogacy contract, the intended parent or parents shall be entitled to all remedies available at law or equity.

(b) Except as expressly provided in the gestational surrogacy contract, the gestational surrogate shall be entitled to all remedies available at law or equity.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/60)

Sec. 60. Rulemaking. The Department of Public Health may adopt rules pertaining to the required medical and mental health evaluations for a gestational surrogacy contract. Until the Department of Public Health adopts such rules, medical and mental health evaluations and procedures shall be conducted in accordance with the recommended guidelines published by the American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists. The rules may adopt these guidelines or others by reference.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/65)

Sec. 65. Severability. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/70)

Sec. 70. Irrevocability. No action to invalidate a gestational surrogacy meeting the requirements of subsection (d) of Section 15 of this Act or to challenge the rights of parentage established pursuant to Section 15 of this Act and the Illinois Parentage Act of 2015 shall be commenced after 12 months from the date of birth of the child.

(Source: P.A. 99-763, eff. 1-1-17.)

(750 ILCS 47/75)

Sec. 75. Application. The provisions of this Act shall apply only to gestational surrogacy contracts entered into after the effective date of this Act.

(Source: P.A. 93-921, eff. 1-1-05.)

(750 ILCS 47/800)

Sec. 800. (Amendatory provisions; text omitted).

(Source: P.A. 93-921, eff. 1-1-05; text omitted.)

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