Gay men who desire a child or children with a biological connection to one or both partners must use a surrogate, either a traditional surrogate (a woman who uses her own eggs) or a gestational carrier (a woman who uses donor eggs and has no biological connection to the resulting child)
In a traditional surrogacy arrangement, the surrogate may become pregnant via artificial insemination or intrauterine insemination (IUI). A traditional surrogate must surrender her parental rights upon the birth of the child
Gestational surrogacy arrangements with anonymous egg donation are more often used today. In this arrangement, the embryos are created via an in vitro fertilization (IVF) cycle with an egg donor, or the donor eggs could be selected from a frozen egg bank. The eggs are fertilized with sperm from one or both of the men in order to create the embryos. Donor sperm may also be used if there are fertility issues.
Often in gestational surrogacy arrangements with gay men, eggs are fertilized with both men’s sperm, and then two embryos are transferred to the surrogate in the hopes that twins (one biologically connected to each male parent) will be born. Or, one embryo is transferred and the other embryos frozen. Then, a separate frozen embryo cycle with an embryo biologically connected to the other male parent is performed at a later date.
In Illinois, gestational surrogacy is permitted by statute 750 Ill. Comp. Stat. 47/10-47/70. For same-sex couples, the biological intended parent can obtain a pre-birth order through vital records; however, the non-biological parent must obtain a court order.
In Illinois, traditional surrogacy is permitted because there are no laws that prohibit it. However, a biological parent cannot go straight to vital records for a pre-birth order. Instead, they must do a stepparent adoption.
If you are a same-sex couple considering traditional or gestational surrogacy, it is very important that you obtain legal counsel from an attorney experienced in reproductive law.