Illinois Code § 25

§ 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 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 (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. 93-921, eff. 1-1-05.) (Text of Section after amendment by 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.)