INSEMINATION, EGG DONATION, AND SURROGACY IN ILLINOIS (written by
Ross & Zuckerman LLP, for use by the Illinois Institute of Continuing
a. Treatment as Naturally Conceived Legitimate Child
The Illinois Parentage Act (“Parentage Act”),
750 ILCS 40/1, et seq. (a separate statutory entity from the Parentage
Act of 1984), provides that a child born to a married couple as
the result of artificial insemination from the wife’s egg
and a donor’s semen is considered the legitimate child of
that married couple. 750 ILCS 40/2. This statute applies only to
“husbands” and “wives” as those terms are
ordinarily and popularly understood. See In re Marriage of Simmons,
825 N.E.2d 303, 311 (2005) (court invalidated insemination agreement
because it was not entered into between husband and wife).
Treatment as Natural Father
a married woman is artificially inseminated under the supervision
of a licensed physician with semen donated by a man who is not her
husband, the husband will be treated in law as if he were the natural
father provided that he consents in accordance with the Parentage
Act’s statutory requirements. 750 ILCS 40/3. Specifically,
the husband’s consent must: (1) be in writing; (2) be signed
by the husband and wife, (3) include the date of insemination; (4);
be certified by the treating physician; and (5) be held and kept
confidential by the treating physician. However, the physician’s
failure to do any of the statutorily mandated directives will not
affect the legal relationship between the father and child. 750
ILCS 40/3. The documents pertaining to the artificial insemination
are subject to inspection only upon an order of the court for good
cause. In In re Parentage of M.J., 787 N.E.2d 144, 149 (2003) the
Illinois Supreme Court found that the Parentage Act’s written
consent provision is mandatory.
a heterosexual couple is not married, and uses donor sperm, the
Intended Father can neither utilize this Illinois statute, nor acknowledge
paternity voluntarily through the Voluntary Acknowledgement of Paternity
forms promulgated by 410 ILCS 535/12. In this situation the only
way to legally become the natural father of the child is through
an adoption proceeding.
some circumstances same sex couples or couples who are not married
should consider a second-parent adoption. While not addressed in
the Illinois Adoption Act, in In re Petition of K.M. and D.M., 274
Ill.App.3d 189, 653 N.E.2d 888, 210 Ill.Dec. 693 (1st Dist. 1995),
the Court held that unmarried couples have standing to adopt a child,
even if that couple is of the same sex. For example, a lesbian couple
who is using a semen donor to conceive a child should consider a
second-parent adoption to establish legal parentage between the
child and the partner who has no genetic relationship and/or did
not carry the child.
An individual who donates semen to a licensed physician
for use in artificial insemination of a woman other than the individual’s
wife will not be treated in law as the natural father of any child
conceived thereby. 750 ILCS 40/3(b).
technique used in assisted reproductive technology is egg donation.
This is a procedure whereby a donor provides an egg that is fertilized
with sperm from either the intended father or a semen donor. Resulting
embryo(s) may then be implanted in the intended mother or another
woman who acts as a surrogate . At the time of birth, the intended
mother’s name will be placed on the birth certificate of the
child. In contrast to donated semen and surrogacy there is currently
no law in Illinois addressing egg donation. Although it is becoming
more common for egg donors to enter into contracts governing their
legal rights with respect to their donated eggs, it may be advisable
for an egg donor to also secure a will disavowing any intent to
be the legal or natural mother of any child(ren) born through the
use of her donated eggs.
is a fertility procedure in which an embryo(s) is donated to intended
parents by a couple who no longer intends on using it. The embryo(s)
is transferred to the uterus of the intended mother or a gestational
surrogate to attempt to conceive a child. There is no genetic relationship
between the embryo and the intended parent(s). Although there is
no law in Illinois addressing embryo donation, it is advisable for
an embryo recipient to enter into a contract with the embryo donor.
Medical ethical guidelines as well as some state laws prohibit payment
of any compensation to embryo donors, aside from reimbursement for
medical or embryo storage fees. The intended mother’s name
(and the intended father’s name if the couple is legally married),
will be placed on the birth certificate of the child(ren) at the
time of birth if the intended mother carries the donated embryo.
The intended parent(s) should also consider an adoption proceeding
to be legally recognized as the natural parent(s) of the child(ren)
born from the embryo donation, as the possibility does exist that
parentage could be challenged by the embryo donor via DNA testing.
If the intended parents are not married, the intended father can
only be placed on the birth certificate and legally recognized as
the natural father through an adoption proceeding. Like egg donors,
embryo donors should also secure a will disavowing any intent to
be the legal or natural mother or father of any child(ren) born
through the use of donated embryos.
The Gestational Surrogacy Act (the “Act”), 750 ILCS
47/1 et seq., was approved on August 12, 2004 and became effective
on January 1, 2005. The Act also amends the surrogacy sections of
the Illinois Parentage Act of 1984 to make them consistent with
the Act. See 750 ILCS 45/5 and 45/6. The Act defines “gestational
surrogacy” as “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.”
(Emphasis added) 750 ILCS 47/10. An “intended parent”
is a person or persons who enters into a gestational surrogacy contract
with a gestational surrogate pursuant to which he, she, or they
will be the legal parent of the resulting child. 750 ILCS 47/10.
Rights of Parentage
A child born to a gestational surrogate will be
considered the legitimate child of the intended parent(s) for purposes
of State law immediately upon the birth of the child if the eligibility
requirements set forth in the Act are met by the gestational surrogate
and the intended parent(s) at the time the gestational surrogacy
contract is executed and the gestational surrogacy contract meets
the requirements of the Act. 750 ILCS 47/15.
the case of a lab 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. 750 ILCS
The gestational surrogate must meet several eligibility
requirements. She must be 21 years of age and have given birth to
at least one child. She must have completed both a medical and mental
health evaluation. The surrogate must also have undergone legal
consultation with independent legal counsel regarding the terms
of the gestational surrogacy contract and potential legal consequences.
Finally, she must have obtained a health insurance policy satisfying
coverage criteria as set forth in the Act. The policy may be procured
by the intended parent(s) on behalf of the gestational surrogate.
750 ILCS 47/20(a).
intended parent(s) must also satisfy several requirements. He, she,
or they must contribute at least one of the gametes resulting in
a pre embryo (fertilized egg) that the gestational surrogate will
attempt to carry to term. He, she, or they must have a medical need
(not defined by the Act) 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 1984. 750 ILCS 45/6 (1). He, she, or they must have also completed
a mental health evaluation and undergone legal consultation with
independent legal counsel regarding the terms of the gestational
surrogacy contract and the potential legal consequences.
The Gestational Surrogacy Contract
Section 25 of the Act sets forth several specific
requirements for the gestational surrogacy contract. It must be
signed by the gestational surrogate and, if married, her husband,
and by the intended parent or parents, prior to the commencement
of any medical procedures (other than medical or mental health evaluations
necessary to determine the eligibility of the parties). The contract’s
execution must be witnessed by two competent adults. In addition,
the gestational surrogate and the intended parent(s) must be represented
by separate counsel in all matters concerning gestational surrogacy
and the gestational surrogacy contract. The gestational surrogate
and the intended parent(s) must sign a written acknowledgement that
he or she received information about the legal, financial, and contractual
rights, expectation, penalties, and obligations of the surrogacy
agreement. If the gestational surrogacy contract provides for the
payment of compensation to the gestational surrogate, the compensation
must be 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). 750
Act also requires that the contract contain certain terms. It must
provide for 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.
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;
and (ii) surrender custody of the child to the intended parent or
parents immediately upon the birth of the child is required. The
contract must also state that the gestational surrogate has the
right to utilize the services of a physician of her choosing, after
consultation with the intended parents, to provide for her care
during the pregnancy. Finally, it must include the express written
agreement of the intended parent(s) 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.
750 ILCS 47/25(c).
surrogacy contract may also – but is not required –
to contain additional provisions concerning, compensation, medical
exams, abstaining from drinking alcohol, etc. The inclusion of one
or more of these provisions will not affect its enforceability for
purposes of State law. The list of additional provisions can be
found at 750 ILCS 47/25(d).
in the event any of the requirements are not met, a court of competent
jurisdiction will determine parentage based on the evidence of the
parties’ intent. 750 ILCS 47/25(e).
Establishment of the parent-child relationship
For purposes of the Illinois Parentage Act of 1984,
a parent-child relationship is established prior to the birth of
the child born through gestational surrogacy if, in addition to
satisfying the requirements of Sections 5 and 6 of the Illinois
Parentage Act of 1984, the attorneys representing both the gestational
surrogate and the intended parent(s) certify that the parties entered
into a gestational surrogacy contract intended to satisfy the requirements
set forth in Section 25 of the Act. The certifications must be filed
on forms prescribed by the Illinois Department of Public Health
consistent with the requirements of the Illinois Parentage Act of
1984. 750 ILCS 47/35.
For further information regarding the history of
surrogacy law in Illinois and the Gestational Surrogacy Act, see
Ford, The New Illinois Gestational Surrogacy Act, 93 Illinois Bar
Journal 240 (May 2005).