Thanks to modern technology, the ability to have children has been opened up for those who need to or desire to pursue methods of alternative reproduction.

For decades, the medical community has continued to refine methods for in vitro fertilization and medical procedures that allow for the implementation of sperm or egg. Simultaneously, cultural acceptance has grown, and legislation codified to protect parents and children born under these systems of “assisted reproduction.”

Penn Medicine reports that 1% to 2% of all births in the United States annually are a result of IVF. 

In Illinois, the law treats the parentage of children created under these alternative circumstances the same as those conceived naturally. Legislation details these guidelines and protections. 

If you’re considering IVF or surrogacy in efforts to have a baby, it’s important to understand your rights and how the legal process works.

How is parentage established for children conceived in vitro?

The term “in vitro fertilization” actually refers to a series of medical procedures in which an egg and sperm are joined together outside the human body in a laboratory setting, and the resulting fertilized embryo is implanted into a woman’s uterus.

Many relationships exist in which in vitro fertilization could occur, including:

• A married or unmarried heterosexual couple who have been unsuccessful through typical conception, and use their own egg and sperm to create an embryo via IVF, which is implanted into the female’s uterus.

• A married or unmarried heterosexual couple in which one person’s physiology prevents them from successfully contributing to conception, and a donor egg or sperm is used to create an embryo via IVF, which is implanted into the female’s uterus.

• A married or unmarried heterosexual couple in which both people’s physiology prevent them from successfully contributing to conception, and both a donor egg and sperm are used to create an embryo, which is implanted into the female’s uterus.

• A married or unmarried same-sex female couple in which donor sperm is combined with the egg of one partner, and implanted into the uterus of the same or other partner.

• A married or unmarried same sex male couple in which a donor egg is combined with the sperm of one partner to create an embryo, which is implanted into the uterus of a designated surrogate.

• A single person whose egg or sperm is combined with donor egg or sperm, and implanted into the uterus of a designated surrogate.

• A single woman who utilizes donor egg and sperm to create an embryo that is implanted into her uterus.

In any of these instances, the law states that parentage of the resulting child is determined by identifying the “intended parents.” If a single person or couple agree and make arrangements to have a child through in vitro fertilization, they are the “intended parents” and the child’s legal parents. Similarly, if a single person chooses to become impregnated by donor sperm directly or through in vitro fertilization, that person is considered the “intended parent,” and the legal parent of the resulting child.

Parents of children conceived through in vitro fertilization have all the same legal rights as parents who conceived their children naturally. Upon the birth of the baby, they are not required to file any additional legal paperwork. They list their names as parents on the child’s birth certificate application and file it with the office of the Illinois Department of Public Health Vital Records office — a process usually handled by the hospital or birthing center. These are the only requirements to reflect parentage of a child born through in vitro fertilization.

What happens during divorce to children born through in vitro fertilization?

Since the state of Illinois makes no distinction in parentage rights for children born through in vitro fertilization, spouses who divorce maintain the same rights as all legal parents.

If the child has already been born, a family court judge hearing the parents’ divorce case will consider issues of custody, visitation and support in the same manner as any other case. Even if the child is the product of only one parent’s genetic material, the non-natural parent holds full parental rights.

In cases when the child is not yet born at the time of a divorce, the intended parents maintain legal parentage of the child. Once the child is born, each intended parent, regardless of genetic contribution, remains the child’s legal parent.

Illinois laws about gestational surrogacy

Gestational surrogacy is a special type of alternative reproduction in which a person or couple engage a woman to carry a baby for them. 

People choose surrogacy in several different situations, including:

• A heterosexual couple in which the female cannot physiologically carry a fetus to term or chooses not to, who utilize in vitro fertilization to create an embryo from the couple’s own sperm and egg, which is carried to term by a surrogate.

• A heterosexual couple in which the female cannot physiologically carry a fetus to term or chooses not to, who utilize in vitro fertilization to create an embryo using one member of the couple’s sperm or egg, and a donated sperm or egg, which is carried to term by a surrogate. 

• A same-sex female couple in which one or both partners cannot physiologically carry a fetus to term or chooses not to, who create an embryo through in vitro fertilization using one member of the couple’s egg and donor sperm, which is carried to term by a surrogate.

• A same-sex male couple who, through in vitro fertilization using one member of the couple’s sperm and a donor egg, create an embryo that is carried to term by a surrogate.

• A single male or female who utilizes in vitro fertilization to create an embryo using their own sperm or egg, and a donated sperm or egg, which is carried to term by a surrogate.

In any legal gestational surrogacy in the state of Illinois, at least one of the intended parents must contribute genetic material to the creation of the embryo.

Who can legally be a surrogate in Illinois?

To legally act as a gestational surrogate in the state of Illinois, a woman must meet certain requirements, including being age 21 or older. She must have given birth to at least one child already, and has to complete medical and mental health evaluations to determine her fitness to act as a surrogate.

Once a woman is determined to be a legally suitable gestational surrogate, she enters into a contract agreement with the intended parent or parents. This contract reflects the intention of the surrogate to carry the baby to term and relinquish parental rights, and the intention of the intended parents to assume legal parentage.

For this contract to be valid, Illinois law also requires the woman intending to act as a gestational surrogate to consult independently with an attorney to discuss the terms and potential legal consequences. 

A legal surrogate must also have a medical insurance policy that covers treatments and hospitalization related to the pregnancy, for a term that extends through eight weeks after the birth of the child. The intended parents may provide funding for this medical insurance.

Creating a legal surrogacy in IllinoisAfter all parties agree to the terms of the gestational surrogacy contract, each must sign a certified statement reflecting their consent to the establishment of the child’s parentage. 
In essence, the woman acting as surrogate and her spouse or partner sign a statement relinquishing parental rights. The intended parents sign to show their intent to assume legal parentage.

Additionally, a physician licensed in the state of Illinois must sign a certified statement acknowledging the surrogacy agreement, along with attorneys representing any of the parties. These certified statements must be executed and filed with the Illinois Department of Public Health and the delivery hospital prior to the child’s birth. If the parties fail to do so, they may obtain a post-birth parentage order through family court. With these documents in place upon the birth of the baby, the intended parents may apply for a birth certificate directly through the Vital Records office. The names of the intended parents are listed as mother and father, or co-parent and co-parent in the case of same-sex couples. The name of the gestational surrogate is not included.

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