Public Act 0921 93RD GENERAL ASSEMBLY

HB4962 Enrolled LRB093 20774 LCB 46675 b

Public Act 093-0921

AN ACT concerning surrogacy.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

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

Section 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.

Section 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.

Section 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.

Section 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 1984;

(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.

Section 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.

(c) A gestational surrogacy contract shall provide for:

(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.

Section 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.

Section 35. Establishment of the parent-child relationship.

(a) For purposes of the Illinois Parentage Act of 1984, 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 Sections 5 and 6 of the Illinois Parentage Act of 1984, 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 1984.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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.

Section 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 1984 shall be commenced after 12 months from the date of birth of the child.

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

Section 800. The Illinois Parentage Act of 1984 is amended by changing Section 6 and by adding Section 2.5 as follows:

(750 ILCS 45/2.5 new)

Sec. 2.5. Definitions. As used in this Act, the terms "gestational surrogacy", "gestational surrogate", and "intended parent" have the same meanings as the terms are defined in Section 10 of the Gestational Surrogacy Act.

(750 ILCS 45/6) (from Ch. 40, par. 2506)

Sec. 6. Establishment of Parent and Child Relationship by Consent of the Parties.

(a) A parent and child relationship may be established voluntarily by the signing and witnessing of a voluntary acknowledgment of parentage in accordance with Section 12 of the Vital Records Act, or Section 10-17.7 of the Illinois Public Aid Code, or the provisions of the Gestational Surrogacy Act. The voluntary acknowledgment of parentage shall contain the social security numbers of the persons signing the voluntary acknowledgment of parentage; however, failure to include the social security numbers of the persons signing a voluntary acknowledgment of parentage does not invalidate the voluntary acknowledgment of parentage.

(1) A parent-child relationship may be established in the event of gestational surrogacy if all of the following conditions are met prior to the birth of the child:

(A) The gestational surrogate mother certifies that she is not the biological mother of the child, and that she is carrying the child for of the intended parents biological father (sperm donor) and of the biological mother (egg donor).

(B) The husband, if any, of the gestational surrogate mother certifies that he is not the biological father of the child and that the child is that of the biological father (sperm donor) and of the biological mother (egg donor).

(C) The intended biological mother certifies that she provided or an egg donor donated the egg from which the child being carried by the gestational surrogate mother was conceived.

(D) The intended biological father certifies that he provided or a sperm donor donated the sperm from which the child being carried by the gestational surrogate mother was conceived.

(E) A physician licensed to practice medicine in all its branches in the State of Illinois certifies that the child being carried by the gestational surrogate mother is the biological child of the intended biological mother (egg donor) and intended biological father (sperm donor), and that neither the gestational surrogate mother nor the gestational surrogate's surrogate mother's husband, if any, is a biological parent of the child being carried by the gestational surrogate mother.

(E-5) The attorneys for the intended parents and the gestational surrogate each certifies that the parties entered into a gestational surrogacy contract intended to satisfy the requirements of Section 25 of the Gestational Surrogacy Act with respect to the child.

(F) All certifications shall be in writing and witnessed by 2 competent adults who are not the gestational surrogate mother, gestational surrogate's surrogate mother's husband, if any, intended biological mother, or intended biological father. Certifications shall be on forms prescribed by the Illinois Department of Public Health, shall be executed prior to the birth of the child, and shall be placed in the medical records of the gestational surrogate mother prior to the birth of the child. Copies of all certifications shall be delivered to the Illinois Department of Public Health prior to the birth of the child.

(2) Unless otherwise determined by order of the Circuit Court, the child shall be presumed to be the child of the gestational surrogate mother and of the gestational surrogate's surrogate mother's husband, if any, if all requirements of subdivision (a)(1) are not met prior to the birth of the child. This presumption may be rebutted by clear and convincing evidence. The circuit court may order the gestational surrogate mother, gestational surrogate's surrogate mother's husband, intended biological mother, intended biological father, and child to submit to such medical examinations and testing as the court deems appropriate.

(b) Notwithstanding any other provisions of this Act, paternity established in accordance with subsection (a) has the full force and effect of a judgment entered under this Act and serves as a basis for seeking a child support order without any further proceedings to establish paternity.

(c) A judicial or administrative proceeding to ratify paternity established in accordance with subsection (a) is neither required nor permitted.

(d) A signed acknowledgment of paternity entered under this Act may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenging party. Pending outcome of the challenge to the acknowledgment of paternity, the legal responsibilities of the signatories shall remain in full force and effect, except upon order of the court upon a showing of good cause.

(e) Once a parent and child relationship is established in accordance with subsection (a), an order for support may be established pursuant to a petition to establish an order for support by consent filed with the clerk of the circuit court. A copy of the properly completed acknowledgment of parentage form shall be attached to the petition. The petition shall ask that the circuit court enter an order for support. The petition may ask that an order for visitation, custody, or guardianship be entered. The filing and appearance fees provided under the Clerks of Courts Act shall be waived for all cases in which an acknowledgment of parentage form has been properly completed by the parties and in which a petition to establish an order for support by consent has been filed with the clerk of the circuit court. This subsection shall not be construed to prohibit filing any petition for child support, visitation, or custody under this Act, the Illinois Marriage and Dissolution of Marriage Act, or the Non-Support Punishment Act. This subsection shall also not be construed to prevent the establishment of an administrative support order in cases involving persons receiving child support enforcement services under Article X of the Illinois Public Aid Code.

(Source: P.A. 91-308, eff. 7-29-99; 91-613, eff. 10-1-99; 92-16, eff. 6-28-01)