The Rights of Surrogates

Posted on in Family Law

Geneva family law attorneyMany couples who want children are unfortunately unable to have them naturally, due to health issues, infertility or other possible factors. More and more couples are turning to surrogates as an answer. Once thought of as a solution mostly for same-sex couples, heterosexual couples are using surrogates to help ease their fertility problems. However, if you are not careful, some complex legal tangles can crop up over a surrogate’s maternal rights.

The Gestational Surrogacy Act

Illinois’ laws about surrogate parents are actually some of the most well-defined and specific in the nation. The Illinois Gestational Surrogacy Act (IGSA) was passed in 2005 to specifically clarify the rights of both the intended parents and the surrogate mother.

The single most important thing to understand about the IGSA, however, is that it only applies to gestational surrogacy agreements—in other words, agreements where the surrogate mother is not also the egg donor. Traditional surrogacy agreements, where the surrogate’s egg is used, are not covered, and the law is significantly murkier when discussing the rights of all those involved. To avoid even more complications, it is usually best to have an egg donor if you or your partner cannot provide one.

The IGSA sets out clearly who the legitimate parents of the child will be, as well as what rights all the parties to the surrogacy contract will have. This not only provides peace of mind to all involved but it also effectively eliminates any need to involve the courts in this and similar affairs. With such rights clearly delineated, there is no reason—or grounds—for a surrogate mother to seek custody years down the line, as sometimes happens in other states.

What Is a Surrogacy Contract?

To effectively conclude a gestational surrogacy, a contract is required under Illinois law. The contract must include certain statutory provisions set out in the IGSA (such as discussion of compensation and parental rights, or lack thereof), and both parties (the surrogate mother and the intended parent or parents) must meet certain requirements.

The surrogate mother must be at least 21 years of age and have given birth before. Both the intended parents and the surrogate must complete physical and mental health exams and consult with independent legal counsel before entering into the contract. The law specifies independent counsel because very often, couples involve surrogacy agencies in their contract formation, and those agencies often have attorneys to represent their interests.

In Illinois, there are also two important medical caveats. First, one or both of the intended parents must also contribute biological material to the child for the IGSA to be applicable to their situation. Second, the couple must have obtained a physician’s letter stating that the surrogacy is medically necessary. The rationale behind this is that if surrogacy is not medically necessary, there may be an ulterior motive for undergoing the process, such as child trafficking.

Contact an Experienced Attorney

Having appropriate legal advice can be absolutely critical as you work toward cementing your future child’s rights. The professional Geneva family law attorneys at our firm have years of experience and a wealth of knowledge that we are happy to put to work for you. Contact us today for a confidential consultation.



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