surrogate motherhood in Illinois

There is no Illinois statutory or case law addressing surrogacy. Following on the heels of the New Jersey "Baby M " case, three bills addressing surrogacy were introduced in the Illinois legislature. Two of the bills were in favor of surrogacy and outlined a surrogacy procedure. The other act would have made surrogacy unenforceable in Illinois. All three acts died in committee.

In Illinois, at the trial court level, intended parents have acquired children through a surrogate mother. An adoption is necessary even if through in-vitro fertilization and implantation, the genetic material for the child is only that of the intended parents and the surrogate only serves a gestational function. The reason that an adoption is always necessary is that the law presumes that the mother of the child is the person who delivered the child.

A no fee surrogacy should be non-problematic in Illinois. It is the fee which is paid to the surrogate for her services which could cause a problem with a given judge.

In Illinois, as in all other states, baby buying is illegal. Thus, the task of the petitioner's (intended parents) attorney is to demonstrate to the judge that the adoption model should not apply to surrogacy since it is not baby buying, but payment for the surrogate's services for carrying and delivering the child.

The Illinois Adoption Act, as other adoption acts, has always allowed for the payment of medical and hospital expenses in connection with the pregnancy and delivery. The Illinois Adoption Act was, however, recently amended to allow for the payment of the biological parent's "reasonable living expenses", which include lodging, food and clothing during the biological mother's pregnancy and for no more than 30 days after the birth of the child. This allowance could be applied to surrogacy situations, in lieu of a surrogacy fee.