Surrogacy and Estate Planning in Illinois

  • Estate Planning
surrogacy and estate planning in illinois | estate and probate legal group

The first legal surrogacy in the U.S. took place in 1985. Since then, it has become more widely used. But along with this new way of allowing couples to have children, it has also brought new legal issues.

Surrogacy is the arrangement between a couple who cannot create or carry a child on their own – with a woman who agrees to do so. The surrogate is implanted with a fertilized egg and carries the baby until birth.

Is Surrogacy Legal in Illinois?

Yes, surrogacy is legal in Illinois but with some restrictions. The main issue is that at least one parent (not the host) must be genetically related to the child.

There are several situations to be considered when establishing parentage in Illinois:

  • Heterosexual couples using own egg and own sperm – both parents are genetically related
  • Heterosexual couples using an egg donor or sperm donor – one parent is genetically related
  • Same-Sex couples using an egg donor or sperm donor – one parent is genetically related
  • Single parent using own egg or sperm – the parent is genetically related

These are the situations in which Illinois recognizes the surrogate child legally born to its parents.

Does the Child Have to be Adopted in Illinois?

No. When done legally, the child’s parents have full parental rights when the child is born. The host mother is contractually obligated not to have any legal parental rights.

Typically, there is a Pre-birth and/or Post-birth order that the surrogate and parents sign. This is to make sure everyone understands that the child will legally belong to the parents and not the host mother.

Once the child is born, the parents’ names will show on the birth certificate and it will legally be their child. They do not need to ‘adopt’ the child from the host mother as long as at least one parent is genetically related to the baby. Also, the child must be born in Illinois.

How an Estate Planning Attorney Can Help

Your estate planning attorney will help you build a solid plan to take care of your loved ones after you pass away. When setting up your estate plan (your will, power of attorney, health care directive, etc.), an experienced estate planning attorney can ensure that all children are covered, including children born via a surrogate who do not meet the above criteria, and may not automatically be your legal heir under Illinois intestacy laws. If your children are still minors, your attorney will help you name legal guardians for your kids if you should die.

Your attorney will listen to you and understand your unique situation. They will ensure your assets are protected and preserved, now and in the future.

Oak Brook Estate Planning Attorney

An experienced estate planning lawyer can advise you on the best options to protect your family after you’re gone. To talk to a qualified attorney in Chicago, contact the Estate & Probate Legal Group at 630-864-5835. 

We serve Cook, DuPage, Kane, Lake and Will counties.