Illinois Gestational Surrogacy Mandate

Illinois Gestational Surrogacy Mandate


Gestational surrogacy is permitted by state statue in Illinois. The Illinois Gestational Surrogacy Act took effect in 2005.

The law protects surrogates and makes it easier for intended parents. Here are a few of its key points:

  • There are no residency requirements for intended parents.
  • Surrogates are not required to live in Illinois. They only have to give birth in Illinois.
  • Intended parents do not have to be married.
  • One of the gametes — egg or sperm — must be contributed by an intended parent.
  • Intended parents and surrogates must complete a health evaluation.
  • Intended parents must provide an affidavit from an Illinois physician certifying that either one or both of the intended parents have a medical need for surrogacy.
  • Intended parents must undergo psychological evaluations
  • Intended parents must consult with independent legal counsel.

The Illinois Gestational Act does not apply if the surrogate is also an egg donor. The intended parent must either contribute the egg or use the egg of a donor who is not the surrogate.

Same-sex couples can enter into a gestational surrogacy arrangement in Illinois. Previously, the Illinois Department of Public Health (IDPH) would only accept one form from a same-sex couple (either the Intended Mother or Intended Father form), and the form was filed by the partner that contributed the gamete in order to establish parentage at the time of birth and have his or her name placed on the birth certificate. The non-biological parent had to do a second-parent adoption proceeding after the birth of the child in order to establish parentage.

This changed late in 2012, and now the IDPH has changed their policy and allows both same-sex intended parents on the birth certificate. According to IDPH, the genders of the ‘intended parents’ are no longer be a meaningful distinction per the Gestational Surrogacy Act. Therefore, all same-sex ‘intended’ parents who are not married nor in a civil union are recorded on the birth record in the same manner that opposite sex intended parents are currently recorded.