Full Text of HB4301 93rd General Assembly
HB4301 93RD GENERAL ASSEMBLY
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93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 HB4301
Introduced 1/30/2004, by Barbara Flynn Currie SYNOPSIS AS INTRODUCED: |
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New Act |
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750 ILCS 45/6 |
from Ch. 40, par. 2506 |
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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.
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A BILL FOR
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HB4301 |
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LRB093 17968 LCB 43651 b |
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| AN ACT concerning surrogacy.
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| Be it enacted by the People of the State of Illinois, | 3 |
| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the | 5 |
| Gestational Surrogacy Act.
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| 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.
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| 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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| participate in the medical
procedures and contractual | 2 |
| obligations involved in the surrogacy contract
after being
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| 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.
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| "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.
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| "Preembryo transfer" means all medical and laboratory | 23 |
| procedures that are
necessary to effectuate the transfer of a | 24 |
| preembryo into the uterine cavity.
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| "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.
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| "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.
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| "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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| 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.
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| "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.
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| Section 15. Eligibility. In order to qualify as a | 8 |
| surrogate, the woman
must:
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| (1) be at least 21 years of age;
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| (2) undergo medical evaluation and provide | 11 |
| documentation that demonstrates
the
medical acceptability | 12 |
| of the woman to undergo the in vitro fertilization or
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| preembryo
transfer procedure; and
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| (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.
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| Section 20. Rights of parentage.
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| (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.
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| (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
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| acknowledged his
paternity in writing, prior to the | 28 |
| fertilization procedure, and agrees to
accept all of the
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| obligations and rights of paternity.
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| (c) Parental rights shall vest in the intended parent or | 31 |
| parents immediately
upon
the birth of the child.
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| (d) In the case of gestational surrogacy, sole custody of | 33 |
| the child goes to
the
intended parent or intended parents.
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| (e) In the case of artificial insemination surrogacy, sole |
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| 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
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| the best interests of
the child.
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| (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.
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| 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.
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| 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.
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| 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;
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| (2) taking against the will of any person, unless the | 22 |
| will provides
otherwise; or
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| (3) being entitled to any support or similar allowance | 24 |
| during the
administration of
a parent's estate.
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| Section 40. Duty to support.
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| (a) Any person who is determined to be the parent of a | 27 |
| child under this Act
shall
support the child.
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| (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
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| parties. In imposing this support obligation, the court may | 32 |
| consider the
seriousness of
and the reasons for noncompliance |
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| in order to determine which of the parties,
if any,
should be | 2 |
| liable for support.
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| (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
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| person may be liable for support of the resulting child.
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| (d) A breach of a surrogacy contract by the intended parent | 8 |
| or parents shall
not
affect their support obligation.
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| Section 45. Requirements for surrogacy contract. A | 10 |
| surrogacy contract
is lawful only if the following requirements | 11 |
| are fulfilled:
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| (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:
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| (1) initially coordinate the matching of the potential | 17 |
| surrogate mothers
with the potential intended parent or | 18 |
| parents;
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| (2) coordinate and facilitate access to medical and | 20 |
| psychological
evaluations once the potential parties to | 21 |
| the surrogacy agreement are
determined;
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| (3) make an evaluation of the suitability of the | 23 |
| parties to a surrogacy
contract, after the medical and | 24 |
| psychological evaluations are completed;
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| (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
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| (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
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| child.
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| (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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| waive any
non-disclosure privileges of the results of the | 2 |
| evaluations conducted by the
health care
provider. The health | 3 |
| care provider shall:
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| (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
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| 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
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| (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.
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| 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
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| the surrogate to perform the surrogacy agreement.
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| (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
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| 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.
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| (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
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| gestational surrogacy, the intended mother or egg donor shall | 34 |
| be subject to
genetic
testing.
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| (e) Separate counsel shall represent the surrogate and the | 36 |
| intended parent or
parents in all matters concerning the |
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| surrogacy arrangement and contract.
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| (f) Each party to the surrogacy contract shall provide the | 3 |
| agent with a
written
indication of that party's informed | 4 |
| consent.
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| (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
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| compensation or
expenses shall be specified in the surrogacy | 10 |
| contract.
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| (h) The surrogacy contract shall be authorized by the court | 12 |
| prior to
the in
vitro fertilization or preembryo transfer | 13 |
| procedure.
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| Section 50. Establishment of parent-child relationship.
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| (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:
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| (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.
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| (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.
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| (3) The intended mother certifies that she donated the | 26 |
| egg from which
the child being carried by the surrogate | 27 |
| mother was conceived.
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| (4) The intended father certifies that he donated the | 29 |
| sperm from which
the child being carried by the surrogate | 30 |
| mother was conceived.
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| (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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| mother's husband, if any, is a biological parent of the | 2 |
| child being
carried by the surrogate mother.
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| (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
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| 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.
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| Section 55. Surrogacy contract.
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| (a) The surrogacy contract shall include, but is not | 15 |
| limited to, the
following terms:
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| (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
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| legal counseling. If the surrogate is married, her spouse's | 20 |
| signature is also
required.
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| (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
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| 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
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| and all legal claims to the child.
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| (3) The amount of compensation must be stated and shall | 29 |
| include:
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| (A) reasonable compensation;
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| (B) pregnancy-related expenses, including | 32 |
| pre-arranged
medical evaluations and complications | 33 |
| occurring within an 8-week period after
the
delivery;
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| (C) a figure representing lost wages caused by the | 35 |
| pregnancy,
delivery, and post-partum recovery;
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| (D) health, disability, and life insurance | 2 |
| throughout the term of the
pregnancy and for 8 weeks | 3 |
| after the delivery;
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| (E) attorney's fees and court costs relating to the | 5 |
| arrangement,
contract, and authorization procedures; | 6 |
| and
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| (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.
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| (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.
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| (5) The name and address of the physician or physicians | 14 |
| who will perform
the surrogacy procedure must be stated.
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| (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.
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| (b) The surrogacy contract may include, but is not limited | 19 |
| to, the following
terms:
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| (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.
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| (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.
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| (3) The intended parent or parents may choose that the |
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| delivery be
performed by Caesarean section.
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| (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.
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| 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 |
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| 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 |
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| 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.
|
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| 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 |
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| 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 |
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| 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.
|
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| (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 |
|
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| 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)
|
|