Articles

ARTIFICAL INSEMINATION, EGG DONATION, AND SURROGACY IN ILLINOIS (written by Ross & Zuckerman LLP, for use by the Illinois Institute of Continuing Legal Education)

Artificial Insemination

a. Treatment as Naturally Conceived Legitimate Child

The Illinois Parentage Act (“Parentage Act”), 750 ILCS 40/1, et seq. (a separate statutory entity from the Parentage Act of 1984), provides that a child born to a married couple as the result of artificial insemination from the wife’s egg and a donor’s semen is considered the legitimate child of that married couple. 750 ILCS 40/2. This statute applies only to “husbands” and “wives” as those terms are ordinarily and popularly understood. See In re Marriage of Simmons, 825 N.E.2d 303, 311 (2005) (court invalidated insemination agreement because it was not entered into between husband and wife).

b. Treatment as Natural Father

If a married woman is artificially inseminated under the supervision of a licensed physician with semen donated by a man who is not her husband, the husband will be treated in law as if he were the natural father provided that he consents in accordance with the Parentage Act’s statutory requirements. 750 ILCS 40/3. Specifically, the husband’s consent must: (1) be in writing; (2) be signed by the husband and wife, (3) include the date of insemination; (4); be certified by the treating physician; and (5) be held and kept confidential by the treating physician. However, the physician’s failure to do any of the statutorily mandated directives will not affect the legal relationship between the father and child. 750 ILCS 40/3. The documents pertaining to the artificial insemination are subject to inspection only upon an order of the court for good cause. In In re Parentage of M.J., 787 N.E.2d 144, 149 (2003) the Illinois Supreme Court found that the Parentage Act’s written consent provision is mandatory.

If a heterosexual couple is not married, and uses donor sperm, the Intended Father can neither utilize this Illinois statute, nor acknowledge paternity voluntarily through the Voluntary Acknowledgement of Paternity forms promulgated by 410 ILCS 535/12. In this situation the only way to legally become the natural father of the child is through an adoption proceeding.

In some circumstances same sex couples or couples who are not married should consider a second-parent adoption. While not addressed in the Illinois Adoption Act, in In re Petition of K.M. and D.M., 274 Ill.App.3d 189, 653 N.E.2d 888, 210 Ill.Dec. 693 (1st Dist. 1995), the Court held that unmarried couples have standing to adopt a child, even if that couple is of the same sex. For example, a lesbian couple who is using a semen donor to conceive a child should consider a second-parent adoption to establish legal parentage between the child and the partner who has no genetic relationship and/or did not carry the child.

c. Semen Donor

An individual who donates semen to a licensed physician for use in artificial insemination of a woman other than the individual’s wife will not be treated in law as the natural father of any child conceived thereby. 750 ILCS 40/3(b).

Egg Donation

A growing technique used in assisted reproductive technology is egg donation. This is a procedure whereby a donor provides an egg that is fertilized with sperm from either the intended father or a semen donor. Resulting embryo(s) may then be implanted in the intended mother or another woman who acts as a surrogate . At the time of birth, the intended mother’s name will be placed on the birth certificate of the child. In contrast to donated semen and surrogacy there is currently no law in Illinois addressing egg donation. Although it is becoming more common for egg donors to enter into contracts governing their legal rights with respect to their donated eggs, it may be advisable for an egg donor to also secure a will disavowing any intent to be the legal or natural mother of any child(ren) born through the use of her donated eggs.

Embryo Donation

Embryo donation is a fertility procedure in which an embryo(s) is donated to intended parents by a couple who no longer intends on using it. The embryo(s) is transferred to the uterus of the intended mother or a gestational surrogate to attempt to conceive a child. There is no genetic relationship between the embryo and the intended parent(s). Although there is no law in Illinois addressing embryo donation, it is advisable for an embryo recipient to enter into a contract with the embryo donor. Medical ethical guidelines as well as some state laws prohibit payment of any compensation to embryo donors, aside from reimbursement for medical or embryo storage fees. The intended mother’s name (and the intended father’s name if the couple is legally married), will be placed on the birth certificate of the child(ren) at the time of birth if the intended mother carries the donated embryo. The intended parent(s) should also consider an adoption proceeding to be legally recognized as the natural parent(s) of the child(ren) born from the embryo donation, as the possibility does exist that parentage could be challenged by the embryo donor via DNA testing. If the intended parents are not married, the intended father can only be placed on the birth certificate and legally recognized as the natural father through an adoption proceeding. Like egg donors, embryo donors should also secure a will disavowing any intent to be the legal or natural mother or father of any child(ren) born through the use of donated embryos.

Surrogacy

The Gestational Surrogacy Act (the “Act”), 750 ILCS 47/1 et seq., was approved on August 12, 2004 and became effective on January 1, 2005. The Act also amends the surrogacy sections of the Illinois Parentage Act of 1984 to make them consistent with the Act. See 750 ILCS 45/5 and 45/6. The Act defines “gestational surrogacy” as “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.” (Emphasis added) 750 ILCS 47/10. An “intended parent” is a person or persons who enters into a gestational surrogacy contract with a gestational surrogate pursuant to which he, she, or they will be the legal parent of the resulting child. 750 ILCS 47/10.

a. Rights of Parentage

A child born to a gestational surrogate will be considered the legitimate child of the intended parent(s) for purposes of State law immediately upon the birth of the child if the eligibility requirements set forth in the Act are met by the gestational surrogate and the intended parent(s) at the time the gestational surrogacy contract is executed and the gestational surrogacy contract meets the requirements of the Act. 750 ILCS 47/15.

In the case of a lab 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. 750 ILCS 47/15(c).

b. Eligibility

The gestational surrogate must meet several eligibility requirements. She must be 21 years of age and have given birth to at least one child. She must have completed both a medical and mental health evaluation. The surrogate must also have undergone legal consultation with independent legal counsel regarding the terms of the gestational surrogacy contract and potential legal consequences. Finally, she must have obtained a health insurance policy satisfying coverage criteria as set forth in the Act. The policy may be procured by the intended parent(s) on behalf of the gestational surrogate. 750 ILCS 47/20(a).

The intended parent(s) must also satisfy several requirements. He, she, or they must contribute at least one of the gametes resulting in a pre embryo (fertilized egg) that the gestational surrogate will attempt to carry to term. He, she, or they must have a medical need (not defined by the Act) 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. 750 ILCS 45/6 (1). He, she, or they must have also completed a mental health evaluation and undergone legal consultation with independent legal counsel regarding the terms of the gestational surrogacy contract and the potential legal consequences.

c. The Gestational Surrogacy Contract

Section 25 of the Act sets forth several specific requirements for the gestational surrogacy contract. It must be signed by the gestational surrogate and, if married, her husband, and by the intended parent or parents, prior to the commencement of any medical procedures (other than medical or mental health evaluations necessary to determine the eligibility of the parties). The contract’s execution must be witnessed by two competent adults. In addition, the gestational surrogate and the intended parent(s) must be represented by separate counsel in all matters concerning gestational surrogacy and the gestational surrogacy contract. The gestational surrogate and the intended parent(s) must sign a written acknowledgement that he or she received information about the legal, financial, and contractual rights, expectation, penalties, and obligations of the surrogacy agreement. If the gestational surrogacy contract provides for the payment of compensation to the gestational surrogate, the compensation must be 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). 750 ILCS 47/25(b).

The Act also requires that the contract contain certain terms. It must provide for 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. 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; and (ii) surrender custody of the child to the intended parent or parents immediately upon the birth of the child is required. The contract must also state that the gestational surrogate has the right to utilize the services of a physician of her choosing, after consultation with the intended parents, to provide for her care during the pregnancy. Finally, it must include the express written agreement of the intended parent(s) 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. 750 ILCS 47/25(c).

A gestational surrogacy contract may also – but is not required – to contain additional provisions concerning, compensation, medical exams, abstaining from drinking alcohol, etc. The inclusion of one or more of these provisions will not affect its enforceability for purposes of State law. The list of additional provisions can be found at 750 ILCS 47/25(d).

Finally, in the event any of the requirements are not met, a court of competent jurisdiction will determine parentage based on the evidence of the parties’ intent. 750 ILCS 47/25(e).

d. Establishment of the parent-child relationship

For purposes of the Illinois Parentage Act of 1984, a parent-child relationship is established prior to the birth of the 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(s) certify that the parties entered into a gestational surrogacy contract intended to satisfy the requirements set forth in Section 25 of the Act. The certifications must be filed on forms prescribed by the Illinois Department of Public Health consistent with the requirements of the Illinois Parentage Act of 1984. 750 ILCS 47/35.

For further information regarding the history of surrogacy law in Illinois and the Gestational Surrogacy Act, see Ford, The New Illinois Gestational Surrogacy Act, 93 Illinois Bar Journal 240 (May 2005).