Illinois Law Legal Requirements for Surrogacy Agreements

UPDATE: The Equality for Every Family Act (HB2683) was signed into law by Governor JB Pritzker in December 2025 and is now in effect. Bold text throughout this article reflects changes under the new law. Read the full breakdown here.

Overview of the Illinois Gestational Surrogacy Act

Since 2005, the state of Illinois has had a surrogacy law on the books. Unlike other states, the Illinois Gestational Surrogacy Act has a few requirements that are distinct and not found in other states like that of in California and Washington. In this article, we discuss the requirements for surrogate and intended parents, and as well as the legal requirements for surrogacy agreements.

Requirements for Surrogates

Under the Illinois law, a surrogate must meet the following requirements:

• She must be over 21 years old;

• She has given birth to at least one child;

• She has completed a medical and mental health evaluation;

• She has undergone a legal consultation regarding the gestational surrogacy agreement with her independent attorney. Under the Equality for Every Family Act, the surrogate’s independent attorney must now be licensed in Illinois, and the intended parents are required to pay for the surrogate’s legal fees.

• She has a health insurance policy that covers major medical treatments and hospitalization, and the term extends throughout the duration of the expected pregnancy and eight weeks after the birth of the child. (Note, the policy may be paid for by intended parents). Additionally, the surrogate retains the right to choose her own treating providers.

Requirements for Intended Parents

Meanwhile, Intended Parents have the following requirements:

• They must contribute at least one of the gametes of the pre-embryo to be carried by the surrogate; Genetic connection no longer required: The Equality for Every Family Act removes the requirement that intended parents contribute at least one gamete. This is a significant change that opens up surrogacy in Illinois to those using donated embryos or both donor sperm and donor eggs.

• At least one intended parent must have a medical need for the surrogacy as evidenced by a physician’s affidavit; “Medical need” replaced with “infertility”: The new law replaces the physician affidavit requirement for “medical need” with a representation that intended parents are experiencing “infertility” as defined in Section 356m(c) of the Illinois Insurance Code. That definition covers three pathways: (1) not establishing or carrying a pregnancy to live birth after 12 months of trying (or 6 months if over age 35), (2) an inability to reproduce as a single person or with a partner without medical intervention, or (3) a physician’s findings based on history, age, exam, or testing. This change is helpful because intended parents need only represent they experience infertility, which includes LGBTQ intended parents who cannot conceive without assistance.

• They also must have completed medical and mental health evaluations; and

• They have undergone a legal consultation with their own independent counsel. The intended parents’ independent counsel must also now be licensed in Illinois.

The Agreement and Legal Process

The surrogacy agreement as well as the medical affidavit between the parties must be witnessed by two witnesses. Once the surrogate is pregnant, the Illinois Parentage Act requires:

• The surrogate and her spouse certify that she is carrying the child for the intended parents and did not provide a gamete for the child;

• The intended parents certify the child was conceived using a gamete of one of the intended parents and not of the gestational carrier or spouse; Under the Equality for Every Family Act, the certification requirements in item (2) above have been updated: the genetic-link language has been removed, so intended parents and the physician no longer need to certify that the child was conceived using a gamete of one of the intended parents.

• An Illinois licensed physician certifies the same as (2); and

• The attorneys for intended parents and surrogate certify compliance with the Gestational Surrogacy Act.

Upon the hospital’s receipt of the certifications, the Illinois' Department of Public Health will issue a birth certificate with the intended parents' names on it. This procedure does not involve a court judgment which means some international or same-sex intended parents may seek a parentage judgment to protect their rights.

The new law also creates a second route to establish parentage: in addition to the existing certification-at-birth process, families can now obtain a court judgment of parentage on a standard record with a short decision timeline when filings are complete.

Additional Contract Provisions Under the Equality of Every Family Act

Escrow requirement: Compensation and reimbursements must now be held by an independent escrow agent that is not affiliated with either side’s law firm.

Marital status changes: If the surrogate marries or divorces after signing, the agreement remains valid and the new spouse does not become a presumed parent. The same principle applies to intended parents if their marital status changes.

Termination before embryo transfer: Any party may terminate the agreement before an embryo transfer or between failed transfers by written notice, with no penalties or liquidated damages absent fraud. Intended parents remain responsible for agreed expenses that accrued up to the termination date.

Professional Legal Assistance

For a seamless process, make sure to consult with a lawyer who specializes in surrogacy law. The attorneys of Tsong Law Group have experience in the areas of gamete donation, surrogacy, family law, and more. They are also licensed in the states of Illinois, California, New York, Washington, Arizona, and Oklahoma.

Contact us now if you need assistance.

This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.