Public Act 093-0921
 		





HB4962 Enrolled
LRB093 20774 LCB 46675 b






    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)







Effective Date:  1/1/2005