In the mid-1980s, the “Baby M” case was a major news story, getting nationwide press coverage. It involved Bill and Betsy Stern, a married couple, who chose to sign a surrogacy contract with a woman named Mary Beth Whitehead. Whitehead eventually gave birth to a baby girl, and decided she wanted to keep her – and refused to allow the Sterns custody.
After a lengthy court battle, in which the baby was referred to in court documents as “Baby M,” the Sterns were ultimately given custody of their daughter, but Whitehead was given visitation rights. The case still has an impact on how Americans think of surrogacy – and it still causes many couples who are considering surrogacy to worry that the surrogate could change her mind after giving birth, and be granted some form of parental rights.
Surrogacy in Illinois
Fortunately for couples who live in Illinois, the state legislature has created a process that allows prospective parents to guarantee their parental rights before their children are born to surrogates. There is a law in Illinois called the Gestational Surrogacy Act, which has streamlined the legal procedures surrounding surrogacy.
The term “gestational surrogacy” refers to when a surrogate mother is implanted with another woman’s egg, which has already been fertilized. The alternative to gestational surrogacy is “traditional” surrogacy, in which the surrogate mother’s egg is used, and she is simply inseminated. The Gestational Surrogacy Act does not apply to these “traditional” surrogacy arrangements. (However, parents who choose traditional surrogacy have other legal options that they can pursue in order to secure their parental rights.)
Under the Gestational Surrogacy Act, if prospective parents choose to pursue gestational surrogacy, and they follow certain legal steps, then they will be recognized as the child’s legal parents immediately upon the child’s birth. Their names will be listed on the child’s birth certificate as the child’s parents.
In order for this happen, the intended parents and the surrogate must also meet certain requirements.
The requirements for the surrogate include:
- She must be at least 21 years old;
- She must have given birth at least one before;
- She must have completed a medical evaluation;
- She must have completed a mental health evaluation;
- She must have consulted with an independent attorney; and
- She must be covered by a health insurance policy.
The requirements for the intended parents include:
- A physician must certify that they have a medical need for gestational surgery;
- They must have completed a mental health evaluation; and
- They must have consulted an independent attorney.
Also, the intended parents and the surrogate must sign a written contract that meets certain requirements. The contract must be signed before any medical procedures take place – with the exception of the medical and mental health evaluations.
If you are considering surrogacy as an option – or you are considering becoming a surrogate – it is important to understand your legal rights from the beginning of the process. The attorneys at Fay, Farrow & Associates, P.C. in Naperville, Illinois, have considerable experience with family law issues, and will provide you with professional assistance.