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Gestational Surrogacy: Path to Parenthood

Unique laws in Illinois make surrogacy a viable and realistic route to parenthood.

Gestational surrogacy isn’t just for celebrities like Sarah Jessica Parker, Angela Bassett and Elton John. It’s estimated that each year, 1,400 babies are born via gestational surrogates in the U.S. Through in vitro fertilization (IVF), a gestational surrogate can carry the biological child of a couple who each provide their genetic material. Women with a medical condition that prohibits them from carrying a child can realize their dream of motherhood with the help of gestational surrogates.

Katie O’Brien is one Chicago-area woman actively pursuing her dream of motherhood with the help of a surrogate. After three failed IVF cycles, her doctor suggested gestational surrogacy to Ms. O’Brien and her husband, Greg. With the help of a surrogacy agency, the couple found a gestational surrogate with whom they immediately felt very comfortable.

Illinois has what many consider the most pro-gestational surrogacy law in the country. The legislature passed the Illinois Gestational Surrogacy Act in 2005, which provides consistent standards and procedural safeguards for all parties involved in the gestational surrogacy – both the gestational surrogate and the person or couple on behalf of whom she’s carrying the child (referred to as “intended parents”). For intended parents, the Act provides reassurance that their legal rights as parents are protected.

Many states and many other countries actually prohibit surrogacy. In Michigan, it’s a felony to enter into or assist anyone in entering into a surrogacy agreement. Indiana denies the enforcement of surrogacy agreements and New York law declares surrogacy to be contrary to its public policy. Other states have no law discussing surrogacy, so it’s unknown whether intended parents’ rights are protected. Without a clear law, there’s a risk that intended parents may not be protected if a surrogate refuses to relinquish the child.

On the contrary, in Illinois, if the law’s requirements are met, the intended parents are immediately considered the child’s legal parents and sole custodians at the birth of the child. The intended parents, not the surrogate, are named on the birth certificate. Some other states require that the surrogate (and, if she’s married, her spouse) be listed on the initial birth certificate and the intended parents adopt the baby, even though they are the biological parents.

Illinois law applies if the birth occurs in Illinois. There is no residency requirement, so intended parents and surrogates need not be Illinois residents. At least one of the intended parents must contribute one of the gametes that results in the pre-embryo to be transferred to the surrogate. Intended parents must have a medical need for the surrogacy, as confirmed by a licensed physician. Further, intended parents and surrogates must complete a mental health evaluation and are also required to consult with independent legal counsel regarding the terms of the surrogacy contract. The requirement to consult with independent legal counsel means that the same attorney may not represent both the intended parents and the surrogate. This helps ensure that all parties to the surrogacy understand and agree to its terms.

A variety of medical reasons may necessitate surrogacy. Angeline Beltsos, MD, of Fertility Centers of Illinois, notes that reasons for surrogacy can include uterine fibroids and medication that cannot be discontinued but that could cause birth defects. Other reasons include genetic and immune disorders, says Ilan Kur-Taspa, MD, a Chicago reproductive medicine physician.

Gestational surrogacy can be an expensive process, with costs usually falling within the $60,000 to $100,000 range. The variance in cost depends upon which expenses are necessary in each particular arrangement. If intended parents use an agency to find a surrogate, they’ll pay the agency a fee. And while money isn’t the primary reason surrogates carry babies for others, they are usually compensated. Other expenses include medical, legal, insurance and escrow management fees. The Act requires that the surrogate has a health insurance policy that covers major medical expenses through the pregnancy and eight weeks afterwards. Intended parents may purchase the insurance if the surrogate does not have a policy.

The journey to motherhood can be full of unexpected blessings. Mr. and Ms. O’Brien say that their surrogate and her husband are people they would have had as friends even if she were not carrying their biological child. Illinois law provides a remarkable avenue for people to realize their dream of parenthood.

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