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1 | AN ACT concerning surrogacy.
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2 | Be it enacted by the People of the State of Illinois, | |||||||||||||||||||||
3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | |||||||||||||||||||||
5 | Gestational Surrogacy Act.
| |||||||||||||||||||||
6 | Section 5. Purpose. The purpose of this Act is to | |||||||||||||||||||||
7 | establish consistent
standards and
procedural safeguards for | |||||||||||||||||||||
8 | the protection of all parties involved in a gestational | |||||||||||||||||||||
9 | surrogacy
contract in this State and to confirm the legal | |||||||||||||||||||||
10 | status of children born as a
result of
these contracts. These | |||||||||||||||||||||
11 | standards and safeguards are meant to
facilitate the use of | |||||||||||||||||||||
12 | this type of reproductive
contract in accord with the public | |||||||||||||||||||||
13 | policy of this State.
| |||||||||||||||||||||
14 | Section 10. Definitions. As used in this Act:
| |||||||||||||||||||||
15 | "Compensation" means payment of any valuable consideration | |||||||||||||||||||||
16 | for services in excess of reasonable medical and ancillary | |||||||||||||||||||||
17 | costs. | |||||||||||||||||||||
18 | "Donor" means an individual who contributes a gamete or | |||||||||||||||||||||
19 | gametes for the purpose of in vitro fertilization or | |||||||||||||||||||||
20 | implantation in another.
| |||||||||||||||||||||
21 | "Gamete" means either a sperm or an egg. | |||||||||||||||||||||
22 | "Gestational surrogacy" means the process by which a woman | |||||||||||||||||||||
23 | gestates
an embryo that is conceived outside of her body and to | |||||||||||||||||||||
24 | which she has made no
genetic
contribution.
| |||||||||||||||||||||
25 | "Gestational surrogate" means a woman who agrees to engage | |||||||||||||||||||||
26 | in a gestational surrogacy. | |||||||||||||||||||||
27 | "Health care provider" means a person who is duly licensed, | |||||||||||||||||||||
28 | certified, or
otherwise authorized to provide health care, | |||||||||||||||||||||
29 | including all medical,
psychological, or
counseling | |||||||||||||||||||||
30 | professions.
| |||||||||||||||||||||
31 | "Informed consent" means a voluntary decision to |
| |||||||
|
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1 | participate in the medical
procedures and contractual | ||||||
2 | obligations involved in the surrogacy contract
after being
| ||||||
3 | fully informed by the agent or counselor of the medical, | ||||||
4 | psychological, and
emotional
risks involved and the legal, | ||||||
5 | financial, and contractual rights, expectations,
penalties, | ||||||
6 | and
obligations.
| ||||||
7 | "Intended parent" means a person who enters into a | ||||||
8 | surrogacy contract with a
surrogate, in accordance with this | ||||||
9 | Act, by which he or she is to become the
parent of the
| ||||||
10 | resulting child. This term shall include the intended mother, | ||||||
11 | intended father,
or
both.
| ||||||
12 | "In vitro fertilization" means all medical and laboratory | ||||||
13 | procedures that are
necessary to effectuate the extracorporeal | ||||||
14 | combining of gametes to allow
fertilization to
occur.
| ||||||
15 | "Medical evaluation" means an evaluation and consultation | ||||||
16 | of a physician meeting the requirements of this Act. | ||||||
17 | "Mental health evaluation" means an evaluation and | ||||||
18 | consultation of a mental health professional meeting the | ||||||
19 | requirements of this Act. | ||||||
20 | "Preembryo" means the cell mass that results from | ||||||
21 | fertilization of an ovum
prior
to implantation.
| ||||||
22 | "Preembryo transfer" means all medical and laboratory | ||||||
23 | procedures that are
necessary to effectuate the transfer of a | ||||||
24 | preembryo into the uterine cavity.
| ||||||
25 | "Surrogacy" means any arrangement by which a woman agrees | ||||||
26 | to be impregnated
using either the intended father's sperm, the | ||||||
27 | intended mother's egg, or a
preembryo with
the intent that the | ||||||
28 | intended parent or parents are to become the legal parent
or | ||||||
29 | parents of
the resulting child after the child's birth.
| ||||||
30 | "Surrogacy contract" means a written agreement that | ||||||
31 | complies with at least
the
minimum requirements of this Act and | ||||||
32 | determines the rights and responsibilities
of all
involved | ||||||
33 | parties.
| ||||||
34 | "Surrogate" means a female person, at least 21 years of | ||||||
35 | age, who agrees,
pursuant
to a surrogacy contract, to be | ||||||
36 | impregnated using the intended father's sperm
or donor
sperm |
| |||||||
|
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1 | and the intended mother's egg, or the preembryo, with the | ||||||
2 | intent that,
after the
birth of the resulting child, the legal | ||||||
3 | parents shall be the intended parent or
parents.
| ||||||
4 | "Surrogacy agent" or "agent" means an individual or | ||||||
5 | organization that is
responsible for the organization and | ||||||
6 | screening involved in the surrogacy
arrangement and
contract.
| ||||||
7 | Section 15. Eligibility. In order to qualify as a | ||||||
8 | surrogate, the woman
must:
| ||||||
9 | (1) be at least 21 years of age;
| ||||||
10 | (2) undergo medical evaluation and provide | ||||||
11 | documentation that demonstrates
the
medical acceptability | ||||||
12 | of the woman to undergo the in vitro fertilization or
| ||||||
13 | preembryo
transfer procedure; and
| ||||||
14 | (3) undergo an evaluation by a counselor or | ||||||
15 | psychologist and provide
written
certification of the | ||||||
16 | counseling and evaluation determining that the woman is
| ||||||
17 | mentally
capable of complying with the surrogate contract | ||||||
18 | to the health care provider
performing the in vitro | ||||||
19 | fertilization or preembryo transfer procedure.
| ||||||
20 | Section 20. Rights of parentage.
| ||||||
21 | (a) A woman who gives birth to a child shall be the mother | ||||||
22 | of that child
unless
otherwise provided for in this Act. In the | ||||||
23 | case of surrogacy, the intended
mother is the
mother of the | ||||||
24 | child for purposes of State law.
| ||||||
25 | (b) A man is presumed to be the
father
of the child if he is | ||||||
26 | the biological father or the intended father who has
| ||||||
27 | acknowledged his
paternity in writing, prior to the | ||||||
28 | fertilization procedure, and agrees to
accept all of the
| ||||||
29 | obligations and rights of paternity.
| ||||||
30 | (c) Parental rights shall vest in the intended parent or | ||||||
31 | parents immediately
upon
the birth of the child.
| ||||||
32 | (d) In the case of gestational surrogacy, sole custody of | ||||||
33 | the child goes to
the
intended parent or intended parents.
| ||||||
34 | (e) In the case of artificial insemination surrogacy, sole |
| |||||||
|
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1 | custody of the
child goes
to the intended parents, but the | ||||||
2 | surrogate may petition the court for
the visitation rights that | ||||||
3 | are outlined in the surrogacy contract. The court
may use its | ||||||
4 | discretion in ordering visitation, but
must take into
account
| ||||||
5 | the best interests of
the child.
| ||||||
6 | (f) Any person who is determined to be the parent and have | ||||||
7 | custody of the
child
under this Act is obligated to support the | ||||||
8 | child.
| ||||||
9 | Section 25. Health care decisions concerning the fetus. All | ||||||
10 | decisions
regarding
the
health of the birth mother and the | ||||||
11 | fetus shall be made by the birth mother,
except as
agreed upon | ||||||
12 | in the surrogacy contract.
| ||||||
13 | Section 30. Legitimacy. A child created through the | ||||||
14 | provisions of this Act
shall be
considered, upon birth, the | ||||||
15 | legitimate child of the intended parent or parents
for all | ||||||
16 | legal
purposes.
| ||||||
17 | Section 35. Succession. A child who is the result of a | ||||||
18 | surrogacy contract
shall be
considered a child only of his or | ||||||
19 | her intended parent or parents for the
purposes of:
| ||||||
20 | (1) intestate succession;
| ||||||
21 | (2) taking against the will of any person, unless the | ||||||
22 | will provides
otherwise; or
| ||||||
23 | (3) being entitled to any support or similar allowance | ||||||
24 | during the
administration of
a parent's estate.
| ||||||
25 | Section 40. Duty to support.
| ||||||
26 | (a) Any person who is determined to be the parent of a | ||||||
27 | child under this Act
shall
support the child.
| ||||||
28 | (b) If the parties of a surrogacy contract do not | ||||||
29 | substantially comply with
the
applicable provisions of this | ||||||
30 | Act, the court may impose a support obligation on
any of the
| ||||||
31 | parties. In imposing this support obligation, the court may | ||||||
32 | consider the
seriousness of
and the reasons for noncompliance |
| |||||||
|
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1 | in order to determine which of the parties,
if any,
should be | ||||||
2 | liable for support.
| ||||||
3 | (c) If any person willfully fails to comply with the | ||||||
4 | provisions of this Act
and the
effect of noncompliance is the | ||||||
5 | authorization of a procedure in violation of
this Act, that
| ||||||
6 | person may be liable for support of the resulting child.
| ||||||
7 | (d) A breach of a surrogacy contract by the intended parent | ||||||
8 | or parents shall
not
affect their support obligation.
| ||||||
9 | Section 45. Requirements for surrogacy contract. A | ||||||
10 | surrogacy contract
is lawful only if the following requirements | ||||||
11 | are fulfilled:
| ||||||
12 | (a) The contract is formed through a third party agent who | ||||||
13 | provides for the
screening of all parties involved and the | ||||||
14 | medical and psychological evaluation
and
counseling for the | ||||||
15 | parties. The third party agent shall:
| ||||||
16 | (1) initially coordinate the matching of the potential | ||||||
17 | surrogate mothers
with the potential intended parent or | ||||||
18 | parents;
| ||||||
19 | (2) coordinate and facilitate access to medical and | ||||||
20 | psychological
evaluations once the potential parties to | ||||||
21 | the surrogacy agreement are
determined;
| ||||||
22 | (3) make an evaluation of the suitability of the | ||||||
23 | parties to a surrogacy
contract, after the medical and | ||||||
24 | psychological evaluations are completed;
| ||||||
25 | (4) submit the agent's evaluation to the court, along | ||||||
26 | with all other
documents necessary in order to provide | ||||||
27 | additional guidance to the determining
court;
and
| ||||||
28 | (5) provide access to medical and psychological | ||||||
29 | counseling for all involved
parties throughout the | ||||||
30 | contract and for an 8-week period after the birth of the
| ||||||
31 | child.
| ||||||
32 | (b) The surrogate and the intended parent or parents shall | ||||||
33 | undergo
non-medical
evaluation and counseling performed by a | ||||||
34 | health care provider. The surrogate
and the
intended parent or | ||||||
35 | parents shall not use the same health care provider and
shall |
| |||||||
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1 | waive any
non-disclosure privileges of the results of the | ||||||
2 | evaluations conducted by the
health care
provider. The health | ||||||
3 | care provider shall:
| ||||||
4 | (1) assess each party's suitability to the agreement | ||||||
5 | including
each party's ability to provide love, affection, | ||||||
6 | and guidance to the child,
the ability of
the party to
| ||||||
7 | adjust to the risks of the contract, the psychological | ||||||
8 | history of the party,
and other factors
the health care | ||||||
9 | provider deems relevant; and
| ||||||
10 | (2) make a finding containing his or her professional | ||||||
11 | opinion as to the
understanding and qualification of the | ||||||
12 | intended parent or parents to accept the
responsibility of | ||||||
13 | the surrogacy agreement.
| ||||||
14 | In the case of the evaluation of the surrogate, the health | ||||||
15 | care provider
shall make a
finding containing his or her | ||||||
16 | professional opinion as to the understanding and
capability of
| ||||||
17 | the surrogate to perform the surrogacy agreement.
| ||||||
18 | (c) A home study for child placement must be conducted with | ||||||
19 | respect to the
intended parent
or
parents by a licensed child | ||||||
20 | placing agency or the Department of Children and
Family
| ||||||
21 | Services. The study shall assess the condition of the home and | ||||||
22 | the ability of
the intended
parent or parents to provide for | ||||||
23 | the health, well-being, and general necessity
of the child.
The | ||||||
24 | results of the study shall be made available to all parties of | ||||||
25 | the
surrogacy contract.
| ||||||
26 | (d) Medical evaluations shall be performed by a licensed | ||||||
27 | physician on the
surrogate and the donor or donors, if the | ||||||
28 | donor is to be an intended parent.
The surrogate
shall not be | ||||||
29 | examined by the same physician who examines the intended parent | ||||||
30 | or
parents. The evaluation shall include an extensive medical | ||||||
31 | history. In cases of
artificial
insemination surrogacy, the | ||||||
32 | surrogate shall be subject to genetic testing. In
cases of
| ||||||
33 | gestational surrogacy, the intended mother or egg donor shall | ||||||
34 | be subject to
genetic
testing.
| ||||||
35 | (e) Separate counsel shall represent the surrogate and the | ||||||
36 | intended parent or
parents in all matters concerning the |
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|
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1 | surrogacy arrangement and contract.
| ||||||
2 | (f) Each party to the surrogacy contract shall provide the | ||||||
3 | agent with a
written
indication of that party's informed | ||||||
4 | consent.
| ||||||
5 | (g) The intended parent or parents shall place money, in | ||||||
6 | the amount indicated
in
the surrogacy contract, in escrow so | ||||||
7 | that the agent can ensure payment of the
expenses
of and the | ||||||
8 | compensation to the surrogate. The distribution of money for
| ||||||
9 | compensation or
expenses shall be specified in the surrogacy | ||||||
10 | contract.
| ||||||
11 | (h) The surrogacy contract shall be authorized by the court | ||||||
12 | prior to
the in
vitro fertilization or preembryo transfer | ||||||
13 | procedure.
| ||||||
14 | Section 50. Establishment of parent-child relationship.
| ||||||
15 | (a) A parent-child relationship may be established in the | ||||||
16 | event of
surrogacy if all of the following conditions are met | ||||||
17 | prior to the birth of the
child:
| ||||||
18 | (1) The surrogate mother certifies that she is not the | ||||||
19 | biological mother
of the child, and that she is carrying | ||||||
20 | the child of the intended parent or
parents.
| ||||||
21 | (2) The husband, if any, of the surrogate mother | ||||||
22 | certifies that he is
not the biological father of the child | ||||||
23 | and that the child is that of the
intended parent or | ||||||
24 | parents.
| ||||||
25 | (3) The intended mother certifies that she donated the | ||||||
26 | egg from which
the child being carried by the surrogate | ||||||
27 | mother was conceived.
| ||||||
28 | (4) The intended father certifies that he donated the | ||||||
29 | sperm from which
the child being carried by the surrogate | ||||||
30 | mother was conceived.
| ||||||
31 | (5) A physician licensed to practice medicine in all | ||||||
32 | its branches in the
State of Illinois certifies that the | ||||||
33 | child being carried by the surrogate
mother is the | ||||||
34 | biological child of the intended parent or parents,
and | ||||||
35 | that neither the surrogate mother nor the
surrogate |
| |||||||
|
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1 | mother's husband, if any, is a biological parent of the | ||||||
2 | child being
carried by the surrogate mother.
| ||||||
3 | (b) All certifications under subsection (a) shall be in | ||||||
4 | writing and
witnessed by 2 competent
adults who are not the | ||||||
5 | surrogate mother, surrogate mother's husband, if any,
intended | ||||||
6 | mother, or intended father. Certifications shall be on forms
| ||||||
7 | prescribed by the Illinois Department of Public Health, shall | ||||||
8 | be executed prior
to the birth of the child, and shall be | ||||||
9 | placed in the medical records of the
surrogate mother prior to | ||||||
10 | the birth of the child. Copies of all
certifications shall be | ||||||
11 | delivered to the Illinois Department of Public Health
prior to | ||||||
12 | the birth of the child.
| ||||||
13 | Section 55. Surrogacy contract.
| ||||||
14 | (a) The surrogacy contract shall include, but is not | ||||||
15 | limited to, the
following terms:
| ||||||
16 | (1) The surrogacy contract must be in writing and | ||||||
17 | signed by the surrogate
and
the intended parent or parents | ||||||
18 | after the parties have had full medical,
psychological, and
| ||||||
19 | legal counseling. If the surrogate is married, her spouse's | ||||||
20 | signature is also
required.
| ||||||
21 | (2) The surrogate must give certification, after | ||||||
22 | informed consent, that she
shall be impregnated, bear the | ||||||
23 | child, and surrender custody of the child to the
intended
| ||||||
24 | parent or parents upon the child's birth. If the surrogate | ||||||
25 | is married, the
spouse's
certification, after informed | ||||||
26 | consent, is required and the spouse shall
surrender custody
| ||||||
27 | and all legal claims to the child.
| ||||||
28 | (3) The amount of compensation must be stated and shall | ||||||
29 | include:
| ||||||
30 | (A) reasonable compensation;
| ||||||
31 | (B) pregnancy-related expenses, including | ||||||
32 | pre-arranged
medical evaluations and complications | ||||||
33 | occurring within an 8-week period after
the
delivery;
| ||||||
34 | (C) a figure representing lost wages caused by the | ||||||
35 | pregnancy,
delivery, and post-partum recovery;
|
| |||||||
|
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1 | (D) health, disability, and life insurance | ||||||
2 | throughout the term of the
pregnancy and for 8 weeks | ||||||
3 | after the delivery;
| ||||||
4 | (E) attorney's fees and court costs relating to the | ||||||
5 | arrangement,
contract, and authorization procedures; | ||||||
6 | and
| ||||||
7 | (F) counseling fees and costs
relating to | ||||||
8 | non-medical evaluations
before and during the | ||||||
9 | pregnancy and for an 8-week period after delivery.
| ||||||
10 | (4) The terms and conditions for the distribution of | ||||||
11 | money by the agent to
the surrogate for expenses and | ||||||
12 | compensation must be stated.
| ||||||
13 | (5) The name and address of the physician or physicians | ||||||
14 | who will perform
the surrogacy procedure must be stated.
| ||||||
15 | (6) In the case of artificial insemination surrogacy, | ||||||
16 | any visitation rights
of
the surrogate mother and the sperm | ||||||
17 | donor, if known, must be stated.
| ||||||
18 | (b) The surrogacy contract may include, but is not limited | ||||||
19 | to, the following
terms:
| ||||||
20 | (1) The intended parent or parents may appoint a | ||||||
21 | physician of their choice
to care for the surrogate and may | ||||||
22 | require the surrogate to undergo with that
physician all | ||||||
23 | medical
exams,
treatments, and fetal monitoring procedures | ||||||
24 | that the
intended parent or parents or the physician
deem
| ||||||
25 | necessary for the success of the pregnancy.
| ||||||
26 | (2) The intended parent or parents may require in | ||||||
27 | advance of the in vitro
fertilization or preembryo transfer | ||||||
28 | procedure that the surrogate abstain from
any activities
| ||||||
29 | that the intended parent or parents deem harmful to the | ||||||
30 | pregnancy and future
health of
the child, including, but | ||||||
31 | not limited to: smoking; drinking alcoholic
beverages; use | ||||||
32 | of
non-prescribed drugs; use of prescription drugs not | ||||||
33 | authorized by a health care
provider;
exposure to | ||||||
34 | radiation; or any other activities proscribed by a health | ||||||
35 | care
provider.
| ||||||
36 | (3) The intended parent or parents may choose that the |
| |||||||
|
|||||||
1 | delivery be
performed by Caesarean section.
| ||||||
2 | (c) The surrogacy contract shall contain attachments of the | ||||||
3 | certifications
establishing the parent-child relationship as | ||||||
4 | provided for in this Act and the
Illinois
Parentage Act of | ||||||
5 | 1984.
| ||||||
6 | Section 60. Judicial authorization.
| ||||||
7 | (a) Within one week after the execution of a surrogacy | ||||||
8 | contract, the parties
shall file
notice with the court of the | ||||||
9 | surrogacy contract and must jointly petition
the court for
| ||||||
10 | judicial authorization.
| ||||||
11 | (b) The petition shall include:
| ||||||
12 | (1) the full names, ages, and residences of all | ||||||
13 | parties;
| ||||||
14 | (2) the name and address of the licensed physician or | ||||||
15 | physicians who will
perform the procedure;
| ||||||
16 | (3) an original copy of the surrogacy contract with all | ||||||
17 | of the required
written consents and signatures;
| ||||||
18 | (4) documents, evaluations, and records as required by | ||||||
19 | this Act;
| ||||||
20 | (5) evidence that the intended parent or parents have | ||||||
21 | deposited sufficient
funds in escrow; and
| ||||||
22 | (6) a written consent by the surrogate's husband, if | ||||||
23 | any,
acknowledging the agreement and his consent to undergo | ||||||
24 | testing if requested by
a
paternity test petition.
| ||||||
25 | (c) After the notice and petition are filed with the court, | ||||||
26 | the intended
parent or
parents shall post with the court a bond | ||||||
27 | of a surety company registered to do
business
within the State. | ||||||
28 | This bond shall indemnify the State for any possible costs,
as
| ||||||
29 | determined by the court, that may be incurred by the State for | ||||||
30 | the care and
placement of
the child in the event of a failure | ||||||
31 | of the surrogacy contract.
| ||||||
32 | (d) The court, in its discretion, may require a hearing | ||||||
33 | prior to granting the
judicial
authorization. This hearing | ||||||
34 | shall be conducted according to the provisions
of this
Act.
| ||||||
35 | (e) The court shall determine, no later than 60 days after |
| |||||||
|
|||||||
1 | the filing or
re-filing of
the petition or, in cases involving | ||||||
2 | a hearing, within 60 days after the
hearing,
whether all of
the | ||||||
3 | required documents, evaluations, and consents have been filed | ||||||
4 | and
the requirements of this Act have been satisfied. An
order | ||||||
5 | granting authorization of the surrogacy contract shall be given | ||||||
6 | only
upon
the
finding that:
| ||||||
7 | (1) all parties to the contract have given their | ||||||
8 | informed consent;
| ||||||
9 | (2) the surrogacy contract conforms to all of the | ||||||
10 | requirements of this Act
and
contains no prohibited or | ||||||
11 | unconscionable terms;
| ||||||
12 | (3) the evaluations and counseling required by this Act | ||||||
13 | have been
sufficiently
completed by qualified health care | ||||||
14 | providers; and
| ||||||
15 | (4) the surrogacy contract is in the best interest of | ||||||
16 | the intended child.
| ||||||
17 | If the court finds that the required documents, evaluations, | ||||||
18 | and consents are
not
sufficient in the original filing, the | ||||||
19 | court shall give the parties one month
to correct the filing.
| ||||||
20 | (f) If the parties submit another insufficient petition or | ||||||
21 | fail to submit
an amended petition, the court shall
dismiss the | ||||||
22 | petition.
The same parties are prohibited from submitting | ||||||
23 | another petition for
authorization of a surrogacy contract for | ||||||
24 | 6 months after the dismissal of
the most recent petition.
| ||||||
25 | (g) The court shall refuse to authorize the surrogacy | ||||||
26 | contract if the
court finds
that any misrepresentation or false | ||||||
27 | statement or document was submitted in
connection with the
| ||||||
28 | petition. Any
parties involved in such a filing shall be | ||||||
29 | prohibited from filing for
authorization for
one year from the | ||||||
30 | date of refusal.
| ||||||
31 | (h) Either party may request a hearing to be held within 60 | ||||||
32 | days after the
order
authorizing or denying the surrogacy | ||||||
33 | contract and may offer additional
relevant
information.
| ||||||
34 | (i) The effect of the judicial order authorizing the | ||||||
35 | surrogacy contract shall
be the
termination of the parental | ||||||
36 | rights of the surrogate and her husband, if any,
after the |
| |||||||
|
|||||||
1 | birth
of the intended child and a vesting of those rights in | ||||||
2 | the intended parent or
parents of the
surrogacy contract.
| ||||||
3 | (j) The court shall retain jurisdiction over the | ||||||
4 | arrangement throughout the
duration
of the surrogacy contract | ||||||
5 | and for 8 weeks thereafter.
| ||||||
6 | Section 65. Notice; hearings. If the court requires a | ||||||
7 | hearing on the
petition
for judicial
authorization, the hearing | ||||||
8 | shall be held within 30 days after the filing of the
petition. | ||||||
9 | At least 10 days prior to the hearing, notice of the hearing | ||||||
10 | shall
be
given to the parties and any
mental health
| ||||||
11 | practitioner, child placing agency, health care provider, or | ||||||
12 | any other person
who
conducted nonmedical or medical evaluation | ||||||
13 | or counseling with respect to a
party to the
contract. The | ||||||
14 | notice
shall include the time and place of the hearing.
| ||||||
15 | All hearings shall be closed to the public and the court | ||||||
16 | shall admit only the
essential
officers of the court, parties, | ||||||
17 | witnesses, and counsel. The parties to the
surrogacy
contract | ||||||
18 | must be present at the hearing.
| ||||||
19 | Papers and records pertaining to the surrogacy hearing | ||||||
20 | shall be subject to
inspection only upon consent of all | ||||||
21 | petitioners or upon a showing of good cause
supported by a | ||||||
22 | court order.
| ||||||
23 | Section 70. Liabilities. A person who acts in negligent | ||||||
24 | noncompliance of
this
Act shall
be liable for resulting damages | ||||||
25 | and may be jointly and severally liable for
child support
to | ||||||
26 | the resulting child under the laws of this State. The sanctions | ||||||
27 | provided in
this Section
shall be in addition to any other | ||||||
28 | sanctions provided by this Act.
| ||||||
29 | Section 75. Sperm donor liability. A sperm donor may be | ||||||
30 | liable for child
support only if
he signs an agreement with the | ||||||
31 | other parties in the surrogacy contract to that
effect.
| ||||||
32 | Section 80. Immunities.
|
| |||||||
|
|||||||
1 | (a) Except as provided in this Act, no person shall be | ||||||
2 | civilly or
criminally
liable for nonnegligent actions taken | ||||||
3 | pursuant to the requirements of this Act.
| ||||||
4 | (b) A health care provider whose actions, taken in | ||||||
5 | performance of a contract
under this Act, are in accord with | ||||||
6 | reasonable medical standards shall not be
subject to
criminal | ||||||
7 | or civil liability or discipline for unprofessional conduct | ||||||
8 | with
respect to those
actions.
| ||||||
9 | Section 85. Noncompliance.
| ||||||
10 | (a) Noncompliance by the surrogate in artificial | ||||||
11 | insemination surrogacy
occurs
when a paternity test reveals | ||||||
12 | that the intended father or agreed-upon sperm
donor is not the
| ||||||
13 | natural father. Only the surrogate or the intended parent or | ||||||
14 | parents may
petition the court
to determine paternity of the | ||||||
15 | child. The petition for the determination of
paternity must
be | ||||||
16 | submitted to the court within 14 calendar days after the birth | ||||||
17 | of the child.
| ||||||
18 | (b) Noncompliance by the surrogate or the intended parent | ||||||
19 | or parents occurs
when
that party breaches a provision of the | ||||||
20 | contract.
| ||||||
21 | Section 90. Effect of noncompliance. Except as provided in | ||||||
22 | this Section,
noncompliance
with the requirements of this Act | ||||||
23 | shall not affect the determination of
parenthood under
this Act | ||||||
24 | nor shall breach of a judicially authorized surrogacy contract
| ||||||
25 | affect the
transfer of parentage under this Act. All legal | ||||||
26 | remedies are available to the
non-
breaching party.
| ||||||
27 | In the case of noncompliance by the surrogate in artificial | ||||||
28 | insemination
surrogacy,
the surrogate's breach shall mean that | ||||||
29 | the custody is placed with the surrogate
and her
spouse, if she | ||||||
30 | is married, and the intended parents shall not have any legal
| ||||||
31 | responsibility
concerning the child. In this case, all legal | ||||||
32 | remedies are available to the
intended parent
or parents | ||||||
33 | against the surrogate.
| ||||||
34 | There shall be no specific performance requirement for a |
| |||||||
|
|||||||
1 | breach by the
surrogate
of a surrogacy contract term that | ||||||
2 | requires her to be impregnated.
| ||||||
3 | Section 95. Damages. If the surrogate fails to become | ||||||
4 | pregnant within a
reasonable time
after the surrogacy contract | ||||||
5 | has been judicially approved, the contract shall
be voidable at
| ||||||
6 | the option of either party.
| ||||||
7 | If the intended parents breach a material term of the | ||||||
8 | contract, the surrogate
may
recover health care expenses that | ||||||
9 | the intended parents were required to pay,
collect the
fees | ||||||
10 | provided for in the contract, and, if the breach was the | ||||||
11 | refusal to accept
the child,
collect child support from the | ||||||
12 | intended parents.
| ||||||
13 | Section 100. Rulemaking. The Department of Public Health | ||||||
14 | may adopt rules
pertaining to
the required medical and | ||||||
15 | psychological evaluations for a surrogacy
contract. Until
the | ||||||
16 | Department of Public Health adopts these rules, medical
| ||||||
17 | evaluations
and procedures shall be conducted in accordance | ||||||
18 | with the relevant sections of
the most
recent guidelines | ||||||
19 | produced by the American Fertility Society.
| ||||||
20 | Section 105. Severability. If any provision of this Act or | ||||||
21 | application of
any
provision of
this Act to any person or | ||||||
22 | circumstance is held invalid, the invalidity does not
affect | ||||||
23 | the
other provisions or applications of the Act that can be | ||||||
24 | given effect without
the invalid
provision or application and | ||||||
25 | for this purpose the provisions of this Act are
severable.
| ||||||
26 | Section 800. The Illinois Parentage Act of 1984 is amended | ||||||
27 | by changing
Section 6 as follows:
| ||||||
28 | (750 ILCS 45/6) (from Ch. 40, par. 2506)
| ||||||
29 | Sec. 6. Establishment of Parent and Child Relationship by | ||||||
30 | Consent of
the Parties.
| ||||||
31 | (a) A parent and child relationship may be established |
| |||||||
|
|||||||
1 | voluntarily by the
signing and witnessing of a voluntary | ||||||
2 | acknowledgment of parentage in accordance
with Section 12 of | ||||||
3 | the Vital Records Act ,
or Section 10-17.7 of the
Illinois
| ||||||
4 | Public Aid Code , or the provisions of the Gestational Surrogacy | ||||||
5 | Act .
The voluntary acknowledgment of parentage shall contain | ||||||
6 | the social security
numbers of the persons signing the | ||||||
7 | voluntary acknowledgment of parentage;
however,
failure to | ||||||
8 | include the
social security numbers of the persons signing a | ||||||
9 | voluntary acknowledgment of
parentage does not
invalidate the | ||||||
10 | voluntary acknowledgment of parentage.
| ||||||
11 | (1) A parent-child relationship may be established in | ||||||
12 | the event of
surrogacy if all of the following conditions | ||||||
13 | are met prior to the birth of the
child:
| ||||||
14 | (A) The surrogate mother certifies that she is not | ||||||
15 | the biological mother
of the child, and that she is | ||||||
16 | carrying the child of the biological father
(sperm | ||||||
17 | donor) and of the biological mother (egg donor).
| ||||||
18 | (B) The husband, if any, of the surrogate mother | ||||||
19 | certifies that he is
not the biological father of the | ||||||
20 | child and that the child is that of the
biological | ||||||
21 | father (sperm donor) and of the biological mother (egg | ||||||
22 | donor).
| ||||||
23 | (C) The biological mother certifies that she | ||||||
24 | donated the egg from which
the child being carried by | ||||||
25 | the surrogate mother was conceived.
| ||||||
26 | (D) The biological father certifies that he | ||||||
27 | donated the sperm from which
the child being carried by | ||||||
28 | the surrogate mother was conceived.
| ||||||
29 | (E) A physician licensed to practice medicine in | ||||||
30 | all its branches in the
State of Illinois certifies | ||||||
31 | that the child being carried by the surrogate
mother is | ||||||
32 | the biological child of the biological mother (egg | ||||||
33 | donor) and
biological father (sperm donor), and that | ||||||
34 | neither the surrogate mother nor the
surrogate | ||||||
35 | mother's husband, if any, is a biological parent of the | ||||||
36 | child being
carried by the surrogate mother.
|
| |||||||
|
|||||||
1 | (F) All certifications shall be in writing and | ||||||
2 | witnessed by 2 competent
adults who are not the | ||||||
3 | surrogate mother, surrogate mother's husband, if any,
| ||||||
4 | biological mother, or biological father. | ||||||
5 | Certifications shall be on forms
prescribed by the | ||||||
6 | Illinois Department of Public Health, shall be | ||||||
7 | executed prior
to the birth of the child, and shall be | ||||||
8 | placed in the medical records of the
surrogate mother | ||||||
9 | prior to the birth of the child. Copies of all
| ||||||
10 | certifications shall be delivered to the Illinois | ||||||
11 | Department of Public Health
prior to the birth of the | ||||||
12 | child.
| ||||||
13 | (2) Unless otherwise determined by order of the Circuit | ||||||
14 | Court, the child
shall be presumed to be the child of the | ||||||
15 | surrogate mother and of the surrogate
mother's husband, if | ||||||
16 | any, if all requirements of subdivision (a)(1) are not
met
| ||||||
17 | prior to the birth of the child. This presumption may be | ||||||
18 | rebutted by clear and
convincing evidence. The circuit | ||||||
19 | court may order the surrogate mother,
surrogate mother's | ||||||
20 | husband, biological mother, biological father, and child | ||||||
21 | to
submit to such medical examinations and testing as the | ||||||
22 | court deems
appropriate.
| ||||||
23 | (b) Notwithstanding any other provisions of this Act, | ||||||
24 | paternity established
in accordance with subsection (a) has the | ||||||
25 | full force and effect of a judgment
entered under this Act and | ||||||
26 | serves as a basis for seeking a child support order
without any | ||||||
27 | further proceedings to establish paternity.
| ||||||
28 | (c) A judicial or administrative proceeding to ratify | ||||||
29 | paternity
established
in accordance with subsection (a) is | ||||||
30 | neither required nor permitted.
| ||||||
31 | (d) A signed acknowledgment of paternity entered under this | ||||||
32 | Act may be
challenged in court only on the basis of fraud, | ||||||
33 | duress, or material mistake of
fact, with the burden of proof | ||||||
34 | upon the challenging party. Pending outcome of
the challenge to | ||||||
35 | the acknowledgment of paternity, the legal responsibilities of
| ||||||
36 | the signatories shall remain in full force and effect, except |
| |||||||
|
|||||||
1 | upon order of the
court upon a showing of good cause.
| ||||||
2 | (e) Once a parent and child relationship is established in | ||||||
3 | accordance with
subsection (a), an order for support may be | ||||||
4 | established pursuant to a petition
to establish an order for | ||||||
5 | support by consent filed with the clerk of the
circuit court. A | ||||||
6 | copy of the properly completed acknowledgment of parentage
form | ||||||
7 | shall be attached to the petition. The petition shall ask that | ||||||
8 | the
circuit court enter an order for support. The petition may | ||||||
9 | ask that an order
for visitation, custody, or guardianship be | ||||||
10 | entered. The filing and appearance
fees provided under the | ||||||
11 | Clerks of Courts Act shall be waived for all cases in
which an | ||||||
12 | acknowledgment of parentage form has been properly completed by | ||||||
13 | the
parties and in which a petition to establish an order for | ||||||
14 | support by consent
has been filed with the clerk of the circuit | ||||||
15 | court. This subsection shall not
be construed to prohibit | ||||||
16 | filing any petition for child support, visitation, or
custody | ||||||
17 | under this Act, the Illinois Marriage and Dissolution of | ||||||
18 | Marriage Act,
or the Non-Support Punishment Act. This | ||||||
19 | subsection shall also not
be construed to prevent the | ||||||
20 | establishment of
an administrative support order in cases | ||||||
21 | involving persons receiving child
support enforcement services | ||||||
22 | under Article X of the Illinois Public Aid Code.
| ||||||
23 | (Source: P.A. 91-308, eff. 7-29-99; 91-613, eff. 10-1-99; | ||||||
24 | 92-16, eff.
6-28-01)
|