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FAMILIES (750 ILCS 47/) Gestational Surrogacy Act.

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Illinois Compiled Statutes (ILCS)

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    (750 ILCS 47/1)
    Sec. 1. Short title. This Act may be cited as the Gestational Surrogacy Act.
(Source: P.A. 93-921, eff. 1-1-05.)

    (750 ILCS 47/5)
    Sec. 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 agreement in this State and to confirm the legal status of children born as a result of these agreements. 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.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/10)
    Sec. 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 a person who provides gametes intended for use in assisted reproduction, whether or not for compensation. "Donor" does not include a person who is a parent under Article 7 of the Illinois Parentage Act of 2015 or an intended parent under this Act.
    "Gamete" means either a sperm or an egg.
    "Gestational surrogacy" means the process by which a woman or person attempts to become pregnant and give birth to a child conceived through in vitro fertilization and to which the gestational surrogate has made no genetic contribution.
    "Gestational surrogate" means a woman or person who agrees to engage in a gestational surrogacy.
    "Gestational surrogacy agreement" means a written agreement regarding gestational surrogacy.
    "Health care provider" means a person who is duly licensed to provide health care, including all medical, psychological, or counseling professionals.
    "Intended parent" means a person who consents to assisted reproduction, including a gestational surrogacy agreement, such that the person is a legal parent of the resulting child. "Intended parent" includes, in the case of a married couple, both spouses for all purposes of this Act.
    "In vitro fertilization" means all medical and laboratory procedures that are necessary to effectuate the extracorporeal fertilization of egg and sperm.
    "Medical evaluation" means an evaluation and consultation of a physician meeting the requirements of Section 60.
    "Mental health evaluation" means an evaluation and consultation of a mental health professional meeting the requirements of Section 60.
    "Physician" means a person licensed to practice medicine in all its branches in the state in which they practice.
    "Pre-embryo" means a fertilized egg prior to 14 days of development.
    "Pre-embryo transfer" means all medical and laboratory procedures that are necessary to effectuate the transfer of a pre-embryo into the uterine cavity.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/15)
    Sec. 15. Rights of Parentage.
    (a) Except as provided in this Act, the woman or person who gives birth to a child is a parent of that child for purposes of State law.
    (b) In the case of a gestational surrogacy agreement that substantially complies with the requirements set forth in Sections 20 and 25 of this Act:
        (1) the intended parent or parents shall be
    
considered the parent or parents of the child for all purposes immediately upon the birth of the child;
        (2) neither the gestational surrogate nor the
    
surrogate's spouse, if any, shall be considered the parents of the child for purposes of State law immediately upon the birth of the child.
    (c) In the case of a gestational surrogacy agreement meeting the requirements set forth in subsection (d) of this Section, in the event of a laboratory error in which the resulting child is not genetically related to either of the intended parents or a donor who donated to the intended parent or parents, the intended parents will be the parents of the child for all purposes unless otherwise determined by a court of competent jurisdiction.
    (d) (Blank).
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/20)
    Sec. 20. Eligibility.
    (a) A gestational surrogate shall be deemed to have satisfied the eligibility requirements of this Act if, at the time the gestational surrogacy agreement is executed, the gestational surrogate:
        (1) is at least 21 years of age;
        (2) has given birth to at least one child;
        (3) has completed a medical evaluation;
        (4) has completed a mental health evaluation;
        (5) has had and will have ongoing legal
    
representation by independent counsel, licensed in Illinois and chosen by the surrogate, throughout the course of the gestational surrogacy arrangement regarding the terms of the gestational surrogacy agreement and the potential consequences of the gestational surrogacy; and
        (6) has obtained a health insurance policy that
    
covers major medical treatments and hospitalization and the health insurance policy has a term that extends throughout the duration of the expected pregnancy and for 8 weeks after the birth of the child; provided, however, that the policy may be procured by the intended parents on behalf of the gestational surrogate pursuant to the gestational surrogacy agreement.
    (b) The intended parent or parents shall be deemed to have satisfied the eligibility requirements of this Act if, at the time the gestational surrogacy agreement is executed, the intended parent or parents:
        (1) is at least 21 years of age;
        (2) are experiencing infertility as defined in
    
subsection (c) of Section 356m of the Illinois Insurance Code;
        (3) have completed a mental health evaluation; and
        (4) has had and will have ongoing legal
    
representation by independent counsel, licensed in Illinois, throughout the course of the gestational surrogacy arrangement regarding the terms of the gestational surrogacy agreement and the potential legal consequences of the gestational surrogacy.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/25)
    (Text of Section from P.A. 104-403)
    Sec. 25. Requirements for a gestational surrogacy contract.
    (a) A gestational surrogacy contract shall be presumed enforceable for purposes of State law only if:
        (1) it meets the contractual requirements set forth
    
in subsection (b) of this Section; and
        (2) it contains at a minimum each of the terms set
    
forth in subsection (c) of this Section.
    (b) A gestational surrogacy contract shall meet the following requirements:
        (1) it shall be in writing;
        (2) it shall be executed prior to the commencement of
    
any medical procedures (other than medical or mental health evaluations necessary to determine eligibility of the parties pursuant to Section 20 of this Act) in furtherance of the gestational surrogacy:
            (i) by a gestational surrogate meeting the
        
eligibility requirements of subsection (a) of Section 20 of this Act and, if married, the gestational surrogate's husband; and
            (ii) by the intended parent or parents meeting
        
the eligibility requirements of subsection (b) of Section 20 of this Act. In the event an intended parent is married, both husband and wife must execute the gestational surrogacy contract;
        (3) each of the gestational surrogate and the
    
intended parent or parents shall have been represented by separate counsel in all matters concerning the gestational surrogacy and the gestational surrogacy contract;
        (3.5) each of the gestational surrogate and the
    
intended parent or parents shall have signed a written acknowledgement that he or she received information about the legal, financial, and contractual rights, expectations, penalties, and obligations of the surrogacy agreement;
        (4) if the gestational surrogacy contract provides
    
for the payment of compensation to the gestational surrogate, the compensation shall have been placed in escrow with an independent escrow agent that is bonded prior to the gestational surrogate's commencement of any medical procedure (other than medical or mental health evaluations necessary to determine the gestational surrogate's eligibility pursuant to subsection (a) of Section 20 of this Act). The independent escrow agent must hold a minimum bond of no less than $1,000,000; and
        (5) it shall be witnessed by 2 competent adults.
    (c) A gestational surrogacy contract shall provide for:
        (1) the express written agreement of the gestational
    
surrogate to:
            (i) undergo pre-embryo transfer and attempt to
        
carry and give birth to the child; and
            (ii) surrender custody of the child to the
        
intended parent or parents immediately upon the birth of the child;
        (2) if the gestational surrogate is married, the
    
express agreement of her husband to:
            (i) undertake the obligations imposed on the
        
gestational surrogate pursuant to the terms of the gestational surrogacy contract;
            (ii) surrender custody of the child to the
        
intended parent or parents immediately upon the birth of the child;
        (3) the right of the gestational surrogate to utilize
    
the services of a physician of her choosing, after consultation with the intended parents, to provide her care during the pregnancy; and
        (4) the express written agreement of the intended
    
parent or parents to:
            (i) accept custody of the child immediately upon
        
his or her birth; and
            (ii) assume sole responsibility for the support
        
of the child immediately upon his or her birth.
    (d) A gestational surrogacy contract shall be presumed enforceable for purposes of State law even though it contains one or more of the following provisions:
        (1) the gestational surrogate's agreement to undergo
    
all medical exams, treatments, and fetal monitoring procedures that the physician recommended for the success of the pregnancy;
        (2) the gestational surrogate's agreement to abstain
    
from any activities that the intended parent or parents or the physician reasonably believes to be harmful to the pregnancy and future health of the child, including, without limitation, smoking, drinking alcohol, using nonprescribed drugs, using prescription drugs not authorized by a physician aware of the gestational surrogate's pregnancy, exposure to radiation, or any other activities proscribed by a health care provider;
        (3) the agreement of the intended parent or parents
    
to pay the gestational surrogate reasonable compensation; and
        (4) the agreement of the intended parent or parents
    
to pay for or reimburse the gestational surrogate for reasonable expenses (including, without limitation, medical, legal, or other professional expenses) related to the gestational surrogacy and the gestational surrogacy contract.
    (e) In the event that any of the requirements of this Section are not met, a court of competent jurisdiction shall determine parentage based on evidence of the parties' intent.
(Source: P.A. 104-403, eff. 1-1-26.)
 
    (Text of Section from P.A. 104-448)
    Sec. 25. Requirements for a gestational surrogacy agreement.
    (a) (Blank).
    (b) A gestational surrogacy agreement shall meet the following requirements:
        (1) it shall be in writing;
        (2) it shall be executed prior to the commencement of
    
any medical procedures (other than medical or mental health evaluations necessary to determine eligibility of the parties pursuant to Section 20 of this Act) in furtherance of the gestational surrogacy:
            (i) by a gestational surrogate meeting the
        
eligibility requirements of subsection (a) of Section 20 of this Act and, if married, the gestational surrogate's spouse; and
            (ii) by the intended parent or parents meeting
        
the eligibility requirements of subsection (b) of Section 20 of this Act. In the event an intended parent is married, both the intended parent and spouse must execute the gestational surrogacy agreement;
        (3) each of the gestational surrogate and the
    
intended parent or parents shall have been represented by independent legal counsel licensed in Illinois regarding the terms of the gestational surrogacy agreement and the potential legal consequences of the gestational surrogacy;
        (3.5) it shall indicate that each party has received
    
information about the legal, financial, and contractual rights, expectations, penalties, and obligations of the surrogacy agreement;
        (4) it shall require the intended parent or parents
    
to pay for independent legal representation for the surrogate;
        (5) if the gestational surrogacy agreement provides
    
for the payment of compensation to the gestational surrogate, the compensation shall have been placed in escrow with an escrow agent that is independent of and is not affiliated with either the intended parents' attorney or the gestational surrogate's attorney prior to the gestational surrogate's commencement of any medical procedure (other than medical or mental health evaluations necessary to determine the gestational surrogate's eligibility pursuant to subsection (a) of Section 20 of this Act); and
        (6) it shall be witnessed by 2 competent adults or
    
shall be notarized consistent with Illinois law.
    (b-5) A gestational surrogacy agreement may provide for the payment of compensation and reasonable expenses.
    (c) A gestational surrogacy agreement shall provide for:
        (1) the express written agreement of the gestational
    
surrogate to:
            (i) undergo pre-embryo transfer and attempt to
        
become pregnant and give birth to the child; and
            (ii) surrender custody of the child to the
        
intended parent or parents immediately upon the birth of the child;
        (2) if the gestational surrogate is married, the
    
express agreement of the gestational surrogate's spouse to:
            (i) undertake the obligations imposed on the
        
gestational surrogate pursuant to the terms of the gestational surrogacy agreement;
            (ii) surrender custody of the child to the
        
intended parent or parents immediately upon the birth of the child;
        (3) the right of the gestational surrogate to utilize
    
the services of a physician of the gestational surrogate's choosing to provide the gestational surrogate with care during the pregnancy;
        (4) the express written agreement of the intended
    
parent or parents to:
            (i) accept custody of the child immediately upon
        
the child's birth; and
            (ii) assume sole responsibility for the support
        
of the child immediately upon the child's birth;
        (5) the right of the gestational surrogate to make
    
all health and welfare decisions regarding the surrogate and the pregnancy, except that this Act does not enlarge or diminish the surrogate's right to terminate their pregnancy, and any written or oral agreement purporting to waive or limit these rights shall be void as against public policy;
        (6) the disclosure of all intended parent's financial
    
obligations with regard to the gestational surrogate, including compensation and expenses; and
        (7) the inclusion of information about each party's
    
right under this Act to terminate the surrogacy agreement.
    (d) (Blank).
    (e) (Blank).
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/26)
    Sec. 26. Effect of subsequent change of marital status.
    (a) Unless a gestational surrogacy agreement expressly provides otherwise, both of the following apply:
        (1) The marriage of a surrogate after the surrogacy
    
agreement is signed by all parties does not affect the validity of the agreement, the spouse's consent to the agreement is not required, and the spouse is not a presumed parent of a child conceived by assisted reproduction under the agreement.
        (2) The dissolution, annulment, or declaration of
    
invalidity of the surrogate's marriage, the legal separation of the surrogate, or a judgment of separate maintenance concerning the surrogate after the surrogacy contract is signed by all parties does not affect the validity of the agreement.
        (3) Unless a surrogacy agreement expressly provides
    
otherwise, both of the following apply:
            (A) The marriage of an intended parent after the
        
surrogacy agreement is signed by all parties does not affect the validity of a surrogacy agreement, the consent of the spouse is not required, and the spouse is not, based on the agreement, a parent of a child conceived by assisted reproduction under the agreement.
            (B) The dissolution, annulment, or declaration of
        
invalidity of an intended parent's marriage, the legal separation of an intended parent, or a judgment of separate maintenance concerning an intended parent after the agreement is signed by all parties does not affect the validity of the agreement and, except as otherwise provided in Section 36, the intended parent is a parent of the child.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/27)
    Sec. 27. Termination.
    (a) A party to a gestational surrogacy agreement may terminate the agreement at any time before an embryo transfer by giving notice of termination in a record to all other parties. If an embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer.
    (b) Unless a gestational surrogacy agreement provides otherwise, on termination of the agreement under subsection (a), the parties are released from the agreement, except that each intended parent remains responsible for expenses that are contemplated under the agreement and incurred by the gestational surrogate through the date of termination of the surrogacy agreement or as otherwise agreed to in the gestational surrogacy agreement.
    (c) Unless there is fraud, a party is not liable to any other party for a penalty or liquidated damages for terminating a gestational surrogacy agreement under this Section.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/30)
    Sec. 30. Duty to support.
    (a) Any person who is a parent of a child pursuant to this Act shall be obligated to support the child.
    (b) The breach of the gestational surrogacy agreement by the intended parent or parents shall not relieve such intended parent or parents of the support obligations imposed by this Act.
    (c)
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/35)
    Sec. 35. Establishment of parentage.
    (a) In the event of gestational surrogacy, in addition to the requirements of the Articles 2 and 3 of the Illinois Parentage Act of 2015, a parent-child relationship is established by operation of law, upon birth of the child, between a person and a child if all of the following conditions are met:
        (1) Each intended parent certifies compliance with
    
the eligibility requirements of Section 20.
        (2) The gestational surrogate certifies compliance
    
with the eligibility requirements of Section 20 and did not provide a gamete for the child, and that the gestational surrogate is carrying the resulting child for the intended parents.
        (3) A physician licensed in the state in which the
    
pre-embryo was transferred to the gestational surrogate certifies that the pre-embryo that was transferred to the gestational surrogate was not formed with the gamete of the gestational surrogate.
        (4) The attorneys for the intended parent or parents
    
and the gestational surrogate and spouse, if any, each certify that the parties substantially satisfied the requirements of Section 25 of this Act.
    (b) All certifications under this Section shall be in writing and witnessed by 2 competent adults who are not the gestational surrogate, gestational surrogate's spouse, if any, or an intended parent. Certifications shall be on forms prescribed by the Illinois Department of Public Health and shall be executed before the birth of the child. All certifications shall be provided, before the birth of the child, to both the hospital where the gestational surrogate anticipates the delivery will occur and to the Illinois Department of Public Health.
    (c) Parentage established in accordance with this Section has the full force and effect of a judgment entered under this Act.
    (d) The Illinois Department of Public Health shall adopt rules to implement this Section.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/36)
    Sec. 36. Establishment of parentage with a substantially compliant agreement.
    (a) A gestational surrogacy agreement that substantially complies with this Act is enforceable.
    (b)(1) Before, on, or after the birth of a child conceived by assisted reproduction under a gestational surrogacy agreement substantially compliant with this Act, a party to the agreement may commence an action in the circuit court for entry of a parentage judgment. The requested parentage judgment may be issued before or after the child's birth as requested by the parties. Either the gestational surrogate or the intended parent may bring the action. If the action is brought prior to all certifications required by Section 35 being filed, all parties must receive notice of such action.
    (2) A petition shall include: (A) a copy of the executed gestational surrogacy agreement; (B) the certification of the assisted reproduction physician under Section 35; and (C) certifications from the attorneys representing the intended parent or parents and the gestational surrogate and spouse (if any) under Section 35. A petition supported by such certifications shall be sufficient to establish parentage and a hearing shall not be required unless the court requires additional information which cannot reasonably be ascertained without a hearing.
    (3) Upon a finding by a preponderance of the evidence that the petition satisfies paragraph (2) of subsection (b), a court shall no later than 30 days from the filing of the petition, issue a judgment of parentage.
    (4) The court shall issue a judgment:
        (A) declaring that each intended parent is a parent
    
of the child and ordering that parental rights and duties vest immediately upon the birth of the child exclusively in each intended parent;
        (B) declaring that the gestational surrogate and the
    
surrogate's spouse or former spouse, if any, are not the parents of the child;
        (C) if necessary, ordering that the hospital where
    
the child will be or has been born, treat the intended parent or parents as the sole legal parent or parents for all purposes;
        (D) designating the content of the birth record and
    
directing the Department of Public Health to designate each intended parent as a parent of the child, if such record has not yet been established or needs to be amended;
        (E) if necessary, ordering that the child be
    
surrendered to the intended parent or parents; and
        (F) for other relief the court determines proper.
    (5) To protect the privacy of the child and the parties, all records related to such action shall be impounded.
    (6) The Department of Public Health, the town or city clerk, and the hospital where the child is born or is intended to be born shall not be necessary parties to a proceeding.
    (7) Parentage judgments issued under this Section shall conclusively establish the parent-child relationship for all purposes.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/37)
    Sec. 37. Parentage and substantial noncompliance.
    (a) If a gestational surrogacy agreement does not substantially comply with the requirements of this Act:
        (1) The court shall determine the rights and duties
    
of the parties to the agreement consistent with the intent of the parties at the time of execution, taking into account the best interests of the child.
        (2) Each party to the surrogacy agreement and any
    
individual who at the time of the execution of the agreement was a spouse of a party to the agreement has standing to maintain an action to adjudicate an issue related to the enforcement of the agreement. Any party to the agreement not joining in the action shall be provided with notice of the proceeding.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/39)
    Sec. 39. Jurisdiction and venue. Any judicial proceeding under the Gestational Surrogacy Act is subject to the jurisdiction and venue provisions set forth in Sections 603 and 604 of the Illinois Parentage Act of 2015.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/40)
    Sec. 40. Immunities. Except as provided in this Act, no person shall be civilly or criminally liable for non-negligent actions taken pursuant to the requirements of this Act.
(Source: P.A. 93-921, eff. 1-1-05.)

    (750 ILCS 47/45)
    Sec. 45. Noncompliance. Noncompliance by the gestational surrogate or the intended parent or parents occurs when that party breaches a provision of the gestational surrogacy contract.
(Source: P.A. 93-921, eff. 1-1-05.)

    (750 ILCS 47/50)
    Sec. 50. Effect of Noncompliance.
    (a) Except as otherwise provided in this Act, in the event of noncompliance with the requirements of subsection (d) of Section 15 of this Act, a court of competent jurisdiction shall determine the respective rights and obligations of the parties.
    (b) There shall be no specific performance remedy available for a breach by the gestational surrogate of a gestational surrogacy contract term that requires her to be impregnated.
(Source: P.A. 93-921, eff. 1-1-05.)

    (750 ILCS 47/55)
    Sec. 55. Damages.
    (a) Except as expressly provided in the gestational surrogacy agreement or in subsection (b), if the agreement is breached by the gestational surrogate or one or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.
    (b) The breach of the gestational surrogacy agreement by one or more intended parents does not relieve the intended parent of the support obligations imposed by the parent and child relationship under this Act.
    (c) Specific performance is not a remedy available for breach by a gestational surrogate of provision in the agreement that the gestational surrogate be impregnated, terminate a pregnancy, or submit to medical procedures.
    (d) Except as otherwise provided in subsection (c), if an intended parent is determined to be a parent of the child, specific performance is a remedy available for either of the following:
        (1) Breach of the gestational surrogacy agreement by
    
a gestational surrogate that prevents an intended parent from exercising the full rights of parentage immediately upon birth of the child.
        (2) Breach of the gestational surrogacy agreement by
    
an intended parent that prevents the intended parent's acceptance of the duties of parentage immediately upon birth of the child.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/60)
    Sec. 60. Rulemaking. The Department of Public Health may adopt rules pertaining to the required medical and mental health evaluations for a gestational surrogacy agreement. Until the Department of Public Health adopts such rules, medical and mental health evaluations and procedures shall be conducted in accordance with the recommended guidelines published by the American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists. The rules may adopt these guidelines or others by reference.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/65)
    Sec. 65. Severability. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application.
(Source: P.A. 93-921, eff. 1-1-05.)

    (750 ILCS 47/70)
    Sec. 70. Irrevocability. No action to invalidate a gestational surrogacy meeting the requirements of subsection (d) of Section 20 and Section 25 of this Act or to challenge the rights of parentage established pursuant to the Gestational Surrogacy Act shall be commenced after 12 months from the date of birth of the child.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/75)
    Sec. 75. Application. The provisions of this Act shall apply only to gestational surrogacy agreements entered into after the effective date of this Act.
(Source: P.A. 104-448, eff. 12-12-25.)

    (750 ILCS 47/800)
    Sec. 800. (Amendatory provisions; text omitted).
(Source: P.A. 93-921, eff. 1-1-05; text omitted.)