What Is a Surrogacy Agreement?

A surrogacy agreement (also known as a surrogacy contract) is a legal document that defines the rights and responsibilities of everyone involved when a woman carries a child for another person or a couple. Surrogacy often involves someone unable to conceive or carry a child working with a woman who will carry a child for them or cases involving same-sex couples (who are treated the same as male/female couples in Illinois law).

On the surface, this appears to be a cause for optimism and goodwill. However, there are times when the surrogacy doesn’t go as planned for numerous reasons: the intended parents may divorce, the surrogate may become pregnant with multiple children, the surrogate may suffer unexpected medical outcomes during the pregnancy (including the fetus being diagnosed with defects or abnormalities), or the surrogate may change their mind about whether or how much they want to be involved with the child when it’s born.

Is a Surrogacy Agreement Legally Binding in Illinois?

It can be, depending on how it’s drawn up, which is why it’s crucial to work with an experienced surrogacy agreement attorney. Illinois recognizes surrogacy as a legal process, whether or not the pregnant woman is compensated for carrying the baby (which is also allowed).

However, the Illinois Gestational Surrogacy Act excludes what’s called traditional surrogacy. This type of surrogacy involves the surrogate using her own eggs rather than having the intended mother’s eggs used. It makes the surrogate the biological mother.

That doesn’t mean traditional surrogacy can’t legally happen. Still, it has to be enforced in court by having the intended parent adopt the child, which is done by stripping the biological mother of parental rights. The birth certificate would have to go through court as well.

Another exception occurs when the intended parents use a donor embryo in the surrogacy, and neither parent is genetically related to the embryo. In those cases, the parents will need to formally adopt the child.

What Could Be Included in a Surrogacy Agreement in Illinois?

One of the most essential inclusions is how the birth certificate will reflect who the legal parents are. A surrogacy agreement that has certifications from the involved adults (would-be parents and surrogate), doctors, and attorneys allows the state to issue a birth certificate in the intended parents’ names. This agreement must be submitted to the delivery hospital prior to the child’s birth. If those things are finalized, no court order is needed to issue the birth certificate.

The agreement could address several other provisions. If you’re unsure which applies to you or how to handle some of them, it’s best to work with an experienced surrogacy agreement attorney. Note that the intended parents and the surrogate should not use the same attorney; each should have their own representation.

  • Both the intentions and the rights of the surrogate and the intended parents.
  • A statement from the surrogate agreeing to give parental rights to the intended parents. In some cases, if the surrogate has a spouse, the spouse may also have to sign the agreement.
  • A statement from the intended parents stating that they will accept parental rights and responsibilities for the child.
  • Compensation. If the surrogate is to be compensated, the agreement should include every possible detail of that compensation, including how much, when payments will be made, how the funds are transferred, and what’s covered (medical care, living costs, etc.).
  • How frequently communication will occur between the parties, which should include not only calls, texts, and emails but also social media and general internet posting.
  • What the surrogate is required to do during the pregnancy in terms of her and the baby’s health (diet, exercise, avoidance of substances such as drugs, tobacco, alcohol, etc.).
  • What rights the intended parents have in terms of medical decisions during the pregnancy
  • How unexpected situations may be handled, such as multiple children in the pregnancy, if the fetus has medical concerns, or if there are risks to the surrogate in continuing the pregnancy
  • Whether or not the surrogate will be allowed to have a relationship with the child after it’s born
  • What the consequences will be for either the intended parents or the surrogate if they breach the terms of the agreement

What’s Required to Enter a Surrogacy in Illinois?

Illinois law requires a surrogate to be at least 21, have previously given birth to at least one child, has a health insurance policy (which can be paid for by the intended parents) that covers her through the pregnancy up to eight weeks after the birth, has worked with an independent attorney to review the agreement, and completed medical and mental health evaluations.

For the intended parents, at least one of them must have contributed to the embryo (whether through sperm or egg), at least one of them must have a medical need for the surrogacy that’s proven by a doctor, they’ve consulted with their attorney, and they’ve undergone mental health and medical evaluations.

What Should I Do if I Need Help with a Surrogacy Agreement In Illinois?

Call the Buchanan Law Group at 312-248-6170 to schedule a free case evaluation. We understand both how exciting and how stressful this process may be for you. Our team of experienced, knowledgeable surrogacy agreement attorneys can review your case and provide insight into what you need to be aware of, prepared for, and what should be included in your agreement.