Assisted reproduction technology (ART) is a relatively new area of Illinois family law. ART gives people the artificial means of having children. In ART arrangements, a child is artificially conceived by combining the genetic material of individuals in a laboratory setting. Historically, parental rights were determined based on the natural biological relationship between parent and child. Reproduction using ART raises critical legal issues regarding the competing parental rights of the parties.
ART methods include in vitro fertilization (IVF), traditional surrogacy, and gestational surrogacy. IVF refers to the general process of artificially fertilizing the reproductive cells of humans in a lab. The parent seeking to use ART to have a child is known as the “intended parent.”
General Parentage Issues
The Illinois Marriage and Dissolution of Marriage Act (IMDMA) governs certain issues relating to ART arrangements. Under Section 703 of the IMDMA, the intended parent is considered to be the legal parent of a child conceived from ART methods.
In cases where the intended parent is not the same person as the one donating their genetic material, the donor must relinquish their rights and responsibilities as a parent before the intended parent can be considered the legal parent of an ART child. Relinquishment of the donor’s parental rights must be accomplished through a written agreement between the interested parties.
In cases of gestational surrogacy, where an embryo resulting from the genetic material of the donors (typically intended parents) is transferred to the surrogate mother strictly for gestational purposes, the following criteria must be met to establish a parent-child relationship:
- The gestational surrogate certifies that she did not provide genetic material for the ART arrangement
- The gestational surrogate’s spouse must not have provided their genetic material for the arrangement
- At least one of the intended parents’ reproductive cells were used in the ART procedure
- A doctor certifies that the child was conceived using one of the intended parents’ genetic material
- The intended parties’ attorneys certify that the intended parents and donors entered into a valid surrogacy agreement satisfying the legal requirements under the Gestational Surrogacy Act
Consent of Donors and Intended Parents
Because parentage in ART arrangements is governed by private agreement under Illinois law, all interested parties must consent to the use of genetic material for purposes of conceiving a child using ART methods. Either the intended parent or donors are allowed to withdraw their consent at any time before conception through insemination or embryo transfer. When consent is withdrawn as such, the intended parent will not attain the status of the resulting child’s legal parent.
Parentage of Deceased Persons
A person can agree to be the parent of a child conceived from their donated reproductive cells after their death in cases where they die before their genetic material was used. Through such an agreement, the deceased individual will become the child’s legal parent if they were born within 36 months of the deceased’s death. This law is important for inheritance and probate purposes.
Ask the Law Offices of Jonathan Merel, PC for Legal Assistance
If you need legal advice regarding parentage issues as they pertain to assisted reproduction technology arrangements, you should consult an experienced attorney from the Law Offices of Jonathan Merel, P.C. Our legal team has the experience and sophisticated understanding of Illinois family law to effectively represent and promote your legal rights and interests.