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Gestational Surrogacy in Illinois

The US Surrogacy Law Map ™

Illinois Surrogacy Laws

Gestational Surrogacy in Illinois is permitted by 750 ILCS 47/1 – 47/75.

 

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Pre-birth Parentage Orders

Do courts grant pre-birth parentage orders?

  • No, they are not necessary under the Illinois statute, which permits Intended Parents to bypass the court and go straight to Vital Records to obtain a birth certificate, so long as all statutory requirements are met and if all necessary certifications have been filed both with the Illinois Department of Public Health and with the delivery hospital prior to the child’s birth. Post-birth parentage orders are required if the statutory requirements were not met or if the Intended Parents want or need a court order. Otherwise, a post-birth parentage court order is necessary.

Who can establish parentage under the statute if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Married same-sex couple using an egg donor or sperm donor: Yes
  • Unmarried same-sex couple using an egg donor or sperm donor: Yes
  • Single parent using own egg or sperm: Yes

Who can establish parentage administratively under the gestational surrogacy statute if no parent is genetically related to the child?

  • Married heterosexual couple: No
  • Unmarried heterosexual couple: No
  • Same-sex couple: No
  • Single parent: No

Note: Illinois’ surrogacy statute allows parentage to be established administratively if at least one parent is genetically related to the child. In addition, pursuant to Article 7 of the Illinois Parentage Act and the Illinois Gestational Surrogacy Act, parents can petition the court pre- or post-birth to establish parentage if there is no genetic connection to the child.

What are the bases for venue?

  • County of the child’s birthplace

Do results vary by venue?

  • No

Is a hearing required to obtain a parentage order?

  • No, if all the statutory requirements are met and the administrative process is completed prior to delivery, no hearing is necessary. The court process is skipped and the Intended Parents go directly to Vital Records for the birth certificate. In the event that the administrative process is not completed prior to delivery, then a court hearing is necessary, resulting in a post-birth parentage order.

Will Illinois Vital Records honor a pre-birth order from another state?  

  • No

What is the typical time frame to obtain a birth certificate after delivery?

  • A birth certificate can be obtained within 3-5 days of the child’s birth from the county clerk’s office, or 2-3 weeks by mail.

Same-Sex Couple

How are same-sex parents named on the final birth certificate?

  • Co-Parent and Co-Parent

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?

  • Yes, if the administrative process is not completed prior to the birth of the child, the hospital will presume the Gestational Carrier is the mother.

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?

  • Yes

Can a non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Illinois (i.e., neither of the Intended Parents live in Illinois)?

  • Yes

 

Second Parent & Stepparent Adoptions for Illinois Residents

Note: This situation typically arises if the child is born outside the state. The parents then return to Illinois to obtain a second parent adoption or stepparent adoption in Illinois.

Will courts in Illinois grant second parent adoptions or stepparent adoptions to heterosexual couples living in Illinois?

  • Yes

Will courts in Illinois grant second parent adoptions or stepparent adoptions to same-sex couples living in Illinois?

  • Yes

Does the couple need to be married?

  • No

Egg and Sperm Donation

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?

  • Yes, per Article 7 of the Illinois Parentage Act of 2015, Section 702, which describes the parental status of donor: A “donor is not a parent of a child conceived by means of assisted reproduction.” Additional sections following 702 outline donor relinquishments of rights and responsibilities.

Traditional Surrogacy in Illinois

Traditional Surrogacy in Illinois is not covered by the statute. However, it is permitted because no statute or published case law prohibits it. In practice, Traditional Surrogacy is treated like a stepparent adoption in Illinois (so long as the Intended Parent provides the sperm). Consequently, a Traditional Surrogate cannot relinquish her maternity rights prior to 72 hours after the child’s birth.

 

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State Law Information Provided By The Following Attorneys Practicing Reproductive Law In This State:

Joanna Beck Wilkinson
Law Offices of Mary Beck, LLC
(314) 962-0292
Joanna@MaryBeckLaw.com

Other Attorneys Practicing Reproductive Law In This State:

Rich Vaughn
Los Angeles, CA
Rich@iflg.net
(323) 904-4733

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