HB4301 93RD GENERAL ASSEMBLY

LRB093 17968 LCB 43651 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB4301

Introduced 1/30/2004, by Barbara Flynn Currie

SYNOPSIS AS INTRODUCED:

New Act
750 ILCS 45/6	from Ch. 40, par. 2506

Creates the Gestational Surrogacy Act. Provides guidelines for creating surrogacy contracts. Establishes the eligibility requirements for becoming a surrogate. Amends the Illinois Parentage Act of 1984. Changes the Section concerning the establishment of the parent and child relationship to include the provisions outlined in the Gestational Surrogacy Act.

A BILL FOR

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 gestates an embryo that is conceived outside of her body and to which she has made no genetic contribution.

"Gestational surrogate" means a woman who agrees to engage in a gestational surrogacy.

"Health care provider" means a person who is duly licensed, certified, or otherwise authorized to provide health care, including all medical, psychological, or counseling professions.

"Informed consent" means a voluntary decision to participate in the medical procedures and contractual obligations involved in the surrogacy contract after being fully informed by the agent or counselor of the medical, psychological, and emotional risks involved and the legal, financial, and contractual rights, expectations, penalties, and obligations.

"Intended parent" means a person who enters into a surrogacy contract with a surrogate, in accordance with this Act, by which he or she is to become the parent of the resulting child. 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 combining of gametes to allow fertilization to occur.

"Medical evaluation" means an evaluation and consultation of a physician meeting the requirements of this Act.

"Mental health evaluation" means an evaluation and consultation of a mental health professional meeting the requirements of this Act.

"Preembryo" means the cell mass that results from fertilization of an ovum prior to implantation.

"Preembryo transfer" means all medical and laboratory procedures that are necessary to effectuate the transfer of a preembryo into the uterine cavity.

"Surrogacy" means any arrangement by which a woman agrees to be impregnated using either the intended father's sperm, the intended mother's egg, or a preembryo with the intent that the intended parent or parents are to become the legal parent or parents of the resulting child after the child's birth.

"Surrogacy contract" means a written agreement that complies with at least the minimum requirements of this Act and determines the rights and responsibilities of all involved parties.

"Surrogate" means a female person, at least 21 years of age, who agrees, pursuant to a surrogacy contract, to be impregnated using the intended father's sperm or donor sperm and the intended mother's egg, or the preembryo, with the intent that, after the birth of the resulting child, the legal parents shall be the intended parent or parents.

"Surrogacy agent" or "agent" means an individual or organization that is responsible for the organization and screening involved in the surrogacy arrangement and contract.

Section 15. Eligibility. In order to qualify as a surrogate, the woman must:

(1) be at least 21 years of age;

(2) undergo medical evaluation and provide documentation that demonstrates the medical acceptability of the woman to undergo the in vitro fertilization or preembryo transfer procedure; and

(3) undergo an evaluation by a counselor or psychologist and provide written certification of the counseling and evaluation determining that the woman is mentally capable of complying with the surrogate contract to the health care provider performing the in vitro fertilization or preembryo transfer procedure.

Section 20. Rights of parentage.

(a) A woman who gives birth to a child shall be the mother of that child unless otherwise provided for in this Act. In the case of surrogacy, the intended mother is the mother of the child for purposes of State law.

(b) A man is presumed to be the father of the child if he is the biological father or the intended father who has acknowledged his paternity in writing, prior to the fertilization procedure, and agrees to accept all of the obligations and rights of paternity.

(c) Parental rights shall vest in the intended parent or parents immediately upon the birth of the child.

(d) In the case of gestational surrogacy, sole custody of the child goes to the intended parent or intended parents.

(e) In the case of artificial insemination surrogacy, sole custody of the child goes to the intended parents, but the surrogate may petition the court for the visitation rights that are outlined in the surrogacy contract. The court may use its discretion in ordering visitation, but must take into account the best interests of the child.

(f) Any person who is determined to be the parent and have custody of the child under this Act is obligated to support the child.

Section 25. Health care decisions concerning the fetus. All decisions regarding the health of the birth mother and the fetus shall be made by the birth mother, except as agreed upon in the surrogacy contract.

Section 30. Legitimacy. A child created through the provisions of this Act shall be considered, upon birth, the legitimate child of the intended parent or parents for all legal purposes.

Section 35. Succession. A child who is the result of a surrogacy contract shall be considered a child only of his or her intended parent or parents for the purposes of:

(1) intestate succession;

(2) taking against the will of any person, unless the will provides otherwise; or

(3) being entitled to any support or similar allowance during the administration of a parent's estate.

Section 40. Duty to support.

(a) Any person who is determined to be the parent of a child under this Act shall support the child.

(b) If the parties of a surrogacy contract do not substantially comply with the applicable provisions of this Act, the court may impose a support obligation on any of the parties. In imposing this support obligation, the court may consider the seriousness of and the reasons for noncompliance in order to determine which of the parties, if any, should be liable for support.

(c) If any person willfully fails to comply with the provisions of this Act and the effect of noncompliance is the authorization of a procedure in violation of this Act, that person may be liable for support of the resulting child.

(d) A breach of a surrogacy contract by the intended parent or parents shall not affect their support obligation.

Section 45. Requirements for surrogacy contract. A surrogacy contract is lawful only if the following requirements are fulfilled:

(a) The contract is formed through a third party agent who provides for the screening of all parties involved and the medical and psychological evaluation and counseling for the parties. The third party agent shall:

(1) initially coordinate the matching of the potential surrogate mothers with the potential intended parent or parents;

(2) coordinate and facilitate access to medical and psychological evaluations once the potential parties to the surrogacy agreement are determined;

(3) make an evaluation of the suitability of the parties to a surrogacy contract, after the medical and psychological evaluations are completed;

(4) submit the agent's evaluation to the court, along with all other documents necessary in order to provide additional guidance to the determining court; and

(5) provide access to medical and psychological counseling for all involved parties throughout the contract and for an 8-week period after the birth of the child.

(b) The surrogate and the intended parent or parents shall undergo non-medical evaluation and counseling performed by a health care provider. The surrogate and the intended parent or parents shall not use the same health care provider and shall waive any non-disclosure privileges of the results of the evaluations conducted by the health care provider. The health care provider shall:

(1) assess each party's suitability to the agreement including each party's ability to provide love, affection, and guidance to the child, the ability of the party to adjust to the risks of the contract, the psychological history of the party, and other factors the health care provider deems relevant; and

(2) make a finding containing his or her professional opinion as to the understanding and qualification of the intended parent or parents to accept the responsibility of the surrogacy agreement.

In the case of the evaluation of the surrogate, the health care provider shall make a finding containing his or her professional opinion as to the understanding and capability of the surrogate to perform the surrogacy agreement.

(c) A home study for child placement must be conducted with respect to the intended parent or parents by a licensed child placing agency or the Department of Children and Family Services. The study shall assess the condition of the home and the ability of the intended parent or parents to provide for the health, well-being, and general necessity of the child. The results of the study shall be made available to all parties of the surrogacy contract.

(d) Medical evaluations shall be performed by a licensed physician on the surrogate and the donor or donors, if the donor is to be an intended parent. The surrogate shall not be examined by the same physician who examines the intended parent or parents. The evaluation shall include an extensive medical history. In cases of artificial insemination surrogacy, the surrogate shall be subject to genetic testing. In cases of gestational surrogacy, the intended mother or egg donor shall be subject to genetic testing.

(e) Separate counsel shall represent the surrogate and the intended parent or parents in all matters concerning the surrogacy arrangement and contract.

(f) Each party to the surrogacy contract shall provide the agent with a written indication of that party's informed consent.

(g) The intended parent or parents shall place money, in the amount indicated in the surrogacy contract, in escrow so that the agent can ensure payment of the expenses of and the compensation to the surrogate. The distribution of money for compensation or expenses shall be specified in the surrogacy contract.

(h) The surrogacy contract shall be authorized by the court prior to the in vitro fertilization or preembryo transfer procedure.

Section 50. Establishment of parent-child relationship.

(a) A parent-child relationship may be established in the event of surrogacy if all of the following conditions are met prior to the birth of the child:

(1) The surrogate mother certifies that she is not the biological mother of the child, and that she is carrying the child of the intended parent or parents.

(2) The husband, if any, of the surrogate mother certifies that he is not the biological father of the child and that the child is that of the intended parent or parents.

(3) The intended mother certifies that she donated the egg from which the child being carried by the surrogate mother was conceived.

(4) The intended father certifies that he donated the sperm from which the child being carried by the surrogate mother was conceived.

(5) A physician licensed to practice medicine in all its branches in the State of Illinois certifies that the child being carried by the surrogate mother is the biological child of the intended parent or parents, and that neither the surrogate mother nor the surrogate mother's husband, if any, is a biological parent of the child being carried by the surrogate mother.

(b) All certifications under subsection (a) shall be in writing and witnessed by 2 competent adults who are not the surrogate mother, surrogate mother's husband, if any, intended mother, or intended 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 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.

Section 55. Surrogacy contract.

(a) The surrogacy contract shall include, but is not limited to, the following terms:

(1) The surrogacy contract must be in writing and signed by the surrogate and the intended parent or parents after the parties have had full medical, psychological, and legal counseling. If the surrogate is married, her spouse's signature is also required.

(2) The surrogate must give certification, after informed consent, that she shall be impregnated, bear the child, and surrender custody of the child to the intended parent or parents upon the child's birth. If the surrogate is married, the spouse's certification, after informed consent, is required and the spouse shall surrender custody and all legal claims to the child.

(3) The amount of compensation must be stated and shall include:

(A) reasonable compensation;

(B) pregnancy-related expenses, including pre-arranged medical evaluations and complications occurring within an 8-week period after the delivery;

(C) a figure representing lost wages caused by the pregnancy, delivery, and post-partum recovery;

(D) health, disability, and life insurance throughout the term of the pregnancy and for 8 weeks after the delivery;

(E) attorney's fees and court costs relating to the arrangement, contract, and authorization procedures; and

(F) counseling fees and costs relating to non-medical evaluations before and during the pregnancy and for an 8-week period after delivery.

(4) The terms and conditions for the distribution of money by the agent to the surrogate for expenses and compensation must be stated.

(5) The name and address of the physician or physicians who will perform the surrogacy procedure must be stated.

(6) In the case of artificial insemination surrogacy, any visitation rights of the surrogate mother and the sperm donor, if known, must be stated.

(b) The surrogacy contract may include, but is not limited to, the following terms:

(1) The intended parent or parents may appoint a physician of their choice to care for the surrogate and may require the surrogate to undergo with that physician all medical exams, treatments, and fetal monitoring procedures that the intended parent or parents or the physician deem necessary for the success of the pregnancy.

(2) The intended parent or parents may require in advance of the in vitro fertilization or preembryo transfer procedure that the surrogate abstain from any activities that the intended parent or parents deem harmful to the pregnancy and future health of the child, including, but not limited to: smoking; drinking alcoholic beverages; use of non-prescribed drugs; use of prescription drugs not authorized by a health care provider; exposure to radiation; or any other activities proscribed by a health care provider.

(3) The intended parent or parents may choose that the delivery be performed by Caesarean section.

(c) The surrogacy contract shall contain attachments of the certifications establishing the parent-child relationship as provided for in this Act and the Illinois Parentage Act of 1984.

Section 60. Judicial authorization.

(a) Within one week after the execution of a surrogacy contract, the parties shall file notice with the court of the surrogacy contract and must jointly petition the court for judicial authorization.

(b) The petition shall include:

(1) the full names, ages, and residences of all parties;

(2) the name and address of the licensed physician or physicians who will perform the procedure;

(3) an original copy of the surrogacy contract with all of the required written consents and signatures;

(4) documents, evaluations, and records as required by this Act;

(5) evidence that the intended parent or parents have deposited sufficient funds in escrow; and

(6) a written consent by the surrogate's husband, if any, acknowledging the agreement and his consent to undergo testing if requested by a paternity test petition.

(c) After the notice and petition are filed with the court, the intended parent or parents shall post with the court a bond of a surety company registered to do business within the State. This bond shall indemnify the State for any possible costs, as determined by the court, that may be incurred by the State for the care and placement of the child in the event of a failure of the surrogacy contract.

(d) The court, in its discretion, may require a hearing prior to granting the judicial authorization. This hearing shall be conducted according to the provisions of this Act.

(e) The court shall determine, no later than 60 days after the filing or re-filing of the petition or, in cases involving a hearing, within 60 days after the hearing, whether all of the required documents, evaluations, and consents have been filed and the requirements of this Act have been satisfied. An order granting authorization of the surrogacy contract shall be given only upon the finding that:

(1) all parties to the contract have given their informed consent;

(2) the surrogacy contract conforms to all of the requirements of this Act and contains no prohibited or unconscionable terms;

(3) the evaluations and counseling required by this Act have been sufficiently completed by qualified health care providers; and

(4) the surrogacy contract is in the best interest of the intended child.

If the court finds that the required documents, evaluations, and consents are not sufficient in the original filing, the court shall give the parties one month to correct the filing.

(f) If the parties submit another insufficient petition or fail to submit an amended petition, the court shall dismiss the petition. The same parties are prohibited from submitting another petition for authorization of a surrogacy contract for 6 months after the dismissal of the most recent petition.

(g) The court shall refuse to authorize the surrogacy contract if the court finds that any misrepresentation or false statement or document was submitted in connection with the petition. Any parties involved in such a filing shall be prohibited from filing for authorization for one year from the date of refusal.

(h) Either party may request a hearing to be held within 60 days after the order authorizing or denying the surrogacy contract and may offer additional relevant information.

(i) The effect of the judicial order authorizing the surrogacy contract shall be the termination of the parental rights of the surrogate and her husband, if any, after the birth of the intended child and a vesting of those rights in the intended parent or parents of the surrogacy contract.

(j) The court shall retain jurisdiction over the arrangement throughout the duration of the surrogacy contract and for 8 weeks thereafter.

Section 65. Notice; hearings. If the court requires a hearing on the petition for judicial authorization, the hearing shall be held within 30 days after the filing of the petition. At least 10 days prior to the hearing, notice of the hearing shall be given to the parties and any mental health practitioner, child placing agency, health care provider, or any other person who conducted nonmedical or medical evaluation or counseling with respect to a party to the contract. The notice shall include the time and place of the hearing.

All hearings shall be closed to the public and the court shall admit only the essential officers of the court, parties, witnesses, and counsel. The parties to the surrogacy contract must be present at the hearing.

Papers and records pertaining to the surrogacy hearing shall be subject to inspection only upon consent of all petitioners or upon a showing of good cause supported by a court order.

Section 70. Liabilities. A person who acts in negligent noncompliance of this Act shall be liable for resulting damages and may be jointly and severally liable for child support to the resulting child under the laws of this State. The sanctions provided in this Section shall be in addition to any other sanctions provided by this Act.

Section 75. Sperm donor liability. A sperm donor may be liable for child support only if he signs an agreement with the other parties in the surrogacy contract to that effect.

Section 80. Immunities.

(a) Except as provided in this Act, no person shall be civilly or criminally liable for nonnegligent actions taken pursuant to the requirements of this Act.

(b) A health care provider whose actions, taken in performance of a contract under this Act, are in accord with reasonable medical standards shall not be subject to criminal or civil liability or discipline for unprofessional conduct with respect to those actions.

Section 85. Noncompliance.

(a) Noncompliance by the surrogate in artificial insemination surrogacy occurs when a paternity test reveals that the intended father or agreed-upon sperm donor is not the natural father. Only the surrogate or the intended parent or parents may petition the court to determine paternity of the child. The petition for the determination of paternity must be submitted to the court within 14 calendar days after the birth of the child.

(b) Noncompliance by the surrogate or the intended parent or parents occurs when that party breaches a provision of the contract.

Section 90. Effect of noncompliance. Except as provided in this Section, noncompliance with the requirements of this Act shall not affect the determination of parenthood under this Act nor shall breach of a judicially authorized surrogacy contract affect the transfer of parentage under this Act. All legal remedies are available to the non- breaching party.

In the case of noncompliance by the surrogate in artificial insemination surrogacy, the surrogate's breach shall mean that the custody is placed with the surrogate and her spouse, if she is married, and the intended parents shall not have any legal responsibility concerning the child. In this case, all legal remedies are available to the intended parent or parents against the surrogate.

There shall be no specific performance requirement for a breach by the surrogate of a surrogacy contract term that requires her to be impregnated.

Section 95. Damages. If the surrogate fails to become pregnant within a reasonable time after the surrogacy contract has been judicially approved, the contract shall be voidable at the option of either party.

If the intended parents breach a material term of the contract, the surrogate may recover health care expenses that the intended parents were required to pay, collect the fees provided for in the contract, and, if the breach was the refusal to accept the child, collect child support from the intended parents.

Section 100. Rulemaking. The Department of Public Health may adopt rules pertaining to the required medical and psychological evaluations for a surrogacy contract. Until the Department of Public Health adopts these rules, medical evaluations and procedures shall be conducted in accordance with the relevant sections of the most recent guidelines produced by the American Fertility Society.

Section 105. Severability. If any provision of this Act or application of any provision of this Act to any person or circumstance is held invalid, the invalidity does not affect the other provisions or applications of the Act that can be given effect without the invalid provision or application and for this purpose the provisions of this Act are severable.

Section 800. The Illinois Parentage Act of 1984 is amended by changing Section 6 as follows:

(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 surrogacy if all of the following conditions are met prior to the birth of the child:

(A) The surrogate mother certifies that she is not the biological mother of the child, and that she is carrying the child of the biological father (sperm donor) and of the biological mother (egg donor).

(B) The husband, if any, of the 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 biological mother certifies that she donated the egg from which the child being carried by the surrogate mother was conceived.

(D) The biological father certifies that he donated the sperm from which the child being carried by the 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 surrogate mother is the biological child of the biological mother (egg donor) and biological father (sperm donor), and that neither the surrogate mother nor the surrogate mother's husband, if any, is a biological parent of the child being carried by the surrogate mother.

(F) All certifications shall be in writing and witnessed by 2 competent adults who are not the surrogate mother, surrogate mother's husband, if any, biological mother, or 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 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 surrogate mother and of the 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 surrogate mother, surrogate mother's husband, biological mother, 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)