If you are planning a surrogacy journey, you probably want to understand how Illinois law protects your parental rights and how to make sure your name appears on your child’s birth certificate.
In this guide, we explain establishing parentage in surrogacy under Illinois law, including whether a pre-birth order is required, what happens when there isn’t a genetic connection and how intended parents are listed on the birth certificate.
If you need help drafting a surrogacy contract or ensuring your parental rights are recognized in other states, schedule a consultation with Gillespie Law Group, LLC.
Establishing Parentage in Illinois Surrogacy
Illinois law allows intended parents to be recognized as their child’s legal parents without going to court when certain requirements are met. This system is designed to make the process more straightforward for families using gestational surrogacy.
How is parentage established in Illinois surrogacy? Instead of asking a judge to issue a parentage order, the intended parents, gestational surrogate and medical professionals complete legal certifications. These documents are submitted to the Illinois Department of Public Health and the hospital before the baby is born.
Once the child is born, the intended parents are recognized as the child’s legal parents from the beginning.
The Legal Process for Establishing Parentage in Illinois Surrogacy
While each surrogacy journey is unique, the legal steps are typically the same. Here’s how intended parents become legal parents in Illinois:
- Step 1: Drafting the Surrogacy Agreement. The intended parents, gestational surrogate and their attorneys prepare and sign a legally compliant surrogacy contract before the embryo transfer. If the surrogate is in Illinois and the child will be born in Illinois, both the intended parents and the surrogate must have Illinois attorneys working with them.
- Step 2: Confirming Pregnancy. Once the pregnancy is confirmed, the legal process for establishing parentage in surrogacy begins.
- Step 3: Submitting Certifications. Required certifications and supporting documentation are submitted to the Illinois Department of Public Health and the hospital where the child will be born
- Step 4: Receiving the Birth Certificate. After the child is born, Illinois vital records issue a birth certificate listing the intended parents as the child’s legal parents.
How the Illinois Gestational Surrogacy Act Protects Intended Parents
Illinois is considered one of the most surrogacy-friendly states in the country because of its surrogacy laws for intended parents.
Under the Act:
- Intended parents can often establish parentage without going to court.
- The intended parents are recognized as the child’s legal parents at birth.
- The gestational surrogate is not treated as the child’s legal parent.
- Hospitals and government agencies receive clear instructions for recording parentage.
Because the process is clearly defined, intended parents can move forward with greater confidence.
Do You Need a Pre-Birth Order for Illinois Surrogacy?
In many states, intended parents must obtain a pre-birth order from a court before the baby is born. This order confirms who the child’s legal parents will be at birth.
Illinois handles parentage differently. When at least one intended parent has a genetic connection to the child and the legal requirements for surrogacy are met, a pre-birth order isn’t necessary. Instead, parentage is confirmed through certifications submitted to the Illinois Department of Public Health and the hospital before the baby is born.
If your gestational surrogacy agreement does not fully comply with Illinois law, but is “substantially compliant,” a pre-birth or post-birth order of parentage can be obtained.
Establishing Parentage Without a Genetic Connection in Illinois
In some surrogacy arrangements, neither intended parent is genetically related to the baby. In these situations, establishing parentage in Illinois may require a court order.
Under the Illinois Parentage Act, intended parents can ask a court to recognize them as the child’s legal parents. This typically involves filing a petition before or shortly after the child is born.
Once the court issues the order, the intended parents are recognized as the child’s legal parents and the birth certificate can reflect their parentage.
Illinois Gestational Surrogacy Act Requirements for Establishing Parentage
To use this process, the surrogacy arrangement must meet the Illinois Gestational Surrogacy Act requirements. These rules help protect the surrogate, the intended parents and the child.
Key requirements include:
- A written surrogacy agreement signed before pregnancy
- Independent legal counsel for the gestational surrogate, licensed in Illinois
- Medical and psychological screening
- Informed consent from all parties
- Transparency regarding compensation and expenses
How the Birth Certificate Lists Intended Parents in Illinois
In Illinois surrogacy cases, the birth certificate lists the intended parents as the child’s legal parents rather than the gestational surrogate.
As a result, intended parents can usually leave the hospital with their parental rights already recognized.
When Will We Receive the Surrogacy Birth Certificate in Illinois?
Parents can usually obtain a birth certificate within three to five days of the child’s birth from the county clerk’s office. If requested by mail, it typically arrives within two to three weeks, depending on the county’s processing timeline.
How Are LGBTQ+ Parents Named on the Birth Certificate?
Illinois respects LGBTQ+ families formed through assisted reproductive technology (ART). You get to choose how you’re listed. You can be listed on the birth certificate as mother/parent, father/parent or parent/parent.
Protecting Your Family With an Experienced Illinois Surrogacy Attorney
Illinois law provides a clear process for establishing parentage in surrogacy, but the legal steps still need to be handled carefully. An experienced Illinois surrogacy attorney can help you:
- Draft legally compliant surrogacy agreements
- Ensure the arrangement meets statutory requirements
- Prepare and submit the necessary certifications
- Address situations involving donor embryos or court filings
At Gillespie Law Group, LLC, we work closely with intended parents to guide them through the legal aspects of family formation. Our goal is to make the process as clear as possible so you can focus on preparing for your child’s arrival.
If you are considering surrogacy or have questions about how Illinois law applies to your situation, contact us today to schedule a consultation.