HB5622 97TH GENERAL ASSEMBLY

LRB097 18413 AJO 63639 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5622

Introduced 2/15/2012, by Rep. Sara Feigenholtz

SYNOPSIS AS INTRODUCED:

New Act

Creates the Assisted Reproduction and Egg Donation Act in connection with methods of causing pregnancy through means other than by sexual intercourse. Contains provisions concerning rights of parentage in connection with assisted reproduction, eligibility for egg donation, requirements for egg donation contracts, the effect of dissolution of a marriage or civil union of the intended parents or their withdrawal of consent to assisted reproduction, duties of child support, the effects of noncompliance with the Act or a breach of an egg donation contract by the egg donor, damages, irrevocability of an egg donation, rulemaking by the Department of Public Health, and severability.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning assisted reproduction.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Assisted Reproduction and Egg Donation Act.

Section 5. Definitions. As used in this Act:

"Assisted reproduction" means a method of causing pregnancy through means other than by sexual intercourse. In the foregoing context, the term includes, but is not limited to:

(1) intrauterine insemination;

(2) donation of eggs;

(3) donation of embryos; and

(4) in-vitro fertilization and transfer of embryos.

"Child" means any child or children born from embryos formed using an egg donor's egg.

"Compensation" means payment of any valuable consideration for services in excess of reasonable medical and ancillary costs.

"Egg donation" means the process by which a woman attempts to contribute her egg for the purpose of in-vitro fertilization or implantation in another whereby the egg donor retains no parental rights, nor are parental obligations presumed.

"Egg donor" means a woman who contributes an egg or eggs for the purpose of in-vitro fertilization or implantation in another.

"Gamete" means either a sperm or an egg.

"Health care provider" means a person who is duly licensed to provide health care services, including all medical, psychological, or counseling professionals.

"Intended parent" means a person who either:

(1) enters into a contract with an egg donor, a sperm donor, or a gestational surrogate pursuant to which he or she will be the legal parent of the resulting child; in the case of a married couple or a couple bound by civil union, any reference to an intended parent includes both parents for all purposes of this Act; the term includes the intended mother, the intended father, or 2 intended parents; or

(2) is the recipient of intrauterine insemination or in-vitro fertilization and transfer of a pre-embryo, and intends to be the legal parent of the resulting child.

"In-vitro fertilization" means all medical and laboratory procedures that are necessary to effectuate the extracorporeal fertilization of egg and sperm.

"Physician" means a person licensed to practice medicine in all its branches in Illinois.

"Pre-embryo" means a fertilized egg prior to 14 days of development.

"Pre-embryo transfer" means all medical and laboratory procedures that are necessary to effectuate the transfer of a pre-embryo into the uterine cavity.

Section 10. Rights of parentage.

(a) Except as provided in this Act or in the Gestational Surrogacy Act, the woman who gives birth to a child is presumed to be the mother of that child for purposes of Illinois law.

(b) In the case of an egg donation satisfying the requirements set forth in this Act:

(1) If, under the supervision of a physician, the intended parent or parents consent to assisted reproduction with sperm donated by a man other than the intended father, the intended father is treated in law as if he were the natural father of the resulting child and the child shall be considered the legal child of the intended parent or parents for purposes of Illinois law immediately upon the birth of the child.

(2) If, under the supervision of a physician, the intended parent or parents consent to assisted reproduction with one or more eggs donated by a woman other than the intended mother and the intended mother does not intend to be a gestational surrogate, the intended mother is treated in law as if she were the natural mother of the resulting child and the child shall be considered the legitimate child of the intended parent or parents for purposes of Illinois law immediately upon the birth of the child.

(3) Neither the donor nor the donor's spouse or civil union partner, if any, is a parent of the child conceived by means of assisted reproduction satisfying the requirements of this Act for purposes of Illinois law.

(4) A written contract meeting the requirements of Section 20 and defining the rights and obligations of the intended parent or parents and the donor must be signed by all parties.

(c) The parties to an egg donation arrangement shall assume the rights and obligations under subsections (a) and (b) of this Section if the eligibility requirements set forth in Section 15 are met.

(d) Failure of any party to sign a consent required under this Act does not preclude a finding that the individual is a parent of the resulting child.

Section 15. Eligibility for egg donation.

(a) An egg donor shall be deemed to have satisfied the requirements of this Act if the following requirements are met prior to the commencement of medical procedures in furtherance of the egg donation other than medical or mental health evaluations necessary to determine eligibility as contemplated in this Act:

(1) She is at least 21 years of age.

(2) She has completed a medical evaluation and received clearance as an appropriate participant from a qualified physician.

(3) She has completed a mental health consultation and is deemed an appropriate participant from a qualified health care provider.

(4) She has undergone a legal consultation with independent legal counsel regarding the terms of the egg donation contract and the potential legal consequences of the egg donation arrangement.

(b) An intended parent or parents shall be deemed to have satisfied the requirements of this Act if the following requirements are met prior to the commencement of medical procedures in furtherance of the egg donation other than medical or mental health consultations necessary to determine eligibility as contemplated in this Act:

(1) The intended parent or parents are at least 21 years of age.

(2) The intended parent or parents have completed a medical evaluation and received clearance as an appropriate participant from a qualified physician.

(3) The intended parent or parents have completed a mental health consultation with a qualified health care provider regarding the risks and benefits of participating in an egg donation arrangement.

(4) The intended parent or parents have completed a legal consultation with independent legal counsel regarding the terms of the egg donation contract and the potential legal consequences of the egg donation arrangement.

Section 20. Requirements for an egg donation contract.

(a) An egg donation contract shall be presumed enforceable for purposes of Illinois law only if it meets the contractual requirements set forth in subsection (b) of this Section and it contains at a minimum each of the terms set forth in subsection (b) of this Section.

(b) An egg donation contract shall meet the following requirements:

(1) It shall be in writing.

(2) It shall be executed prior to the commencement of any medical procedure in furtherance of the egg donation other than medical or mental health evaluations or consultations necessary to determine eligibility of the parties pursuant to Section 15:

(A) By a donor meeting the eligibility requirements of Section 15.

(B) By the intended parent or parents meeting the eligibility requirements of Section 15. If the intended parents intend to jointly parent any child resulting from the egg donation, they both must sign the egg donation contract regardless of their marital or civil union status.

(C) Both the donor and the intended parent or parents shall have been represented by separate legal counsel in all matters concerning the egg donation and the egg donation contract.

(3) An egg donation contract shall provide for:

(A) The specific terms of agreement regarding the following items:

(i) The donor's participation in medical testing and procedures that the physician recommends or the intended parent or parents may request.

(ii) The donor's abstention from activities that the intended parent or parents or physician reasonably believes may cause harm to a fetus and the future health of the child through the date of the retrieval procedure.

(iii) The terms of payment of reasonable compensation, if any.

(iv) The payment of the medical, legal, or other professional expenses related to the egg donation and the egg donation contract.

(v) The acknowledgment of the donor and the intended parent or parents that he or she received information about the legal, financial (including information regarding the availability of health insurance related to complications associated with egg donation procedures), and contractual rights, expectations, penalties, and obligations of the egg donation agreement.

(B) The express written agreement of the donor:

(i) To follow the medical instructions provided by the treating physician.

(ii) For relinquishment of any claim to a child born as a result of the egg donation arrangement.

(iii) For relinquishment of any claim to any embryo formed pursuant to the egg donation, subject to limitations regarding donation of embryos to any other individual for reproductive use or other disposition restrictions as set forth in the contract and agreed upon by all parties.

(C) If the donor is married or bound by civil union:

(i) The donor's husband or partner shall not be a parent of the child.

(ii) The donor's husband or partner shall not have any claim to any child or embryo resulting from the egg donation arrangement.

(iii) The donor's husband or partner shall not have standing to bring any claim for damages against the intended parent or parents from any liability resulting from his or her wife's or partner's participation in an egg donation arrangement meeting the requirements of this Act.

(D) The express written agreement of the intended parent or parents to:

(a) Accept all parental obligations for any child born as a result of the egg donation.

(b) Assume sole responsibility for the duty to support the child or children.

(c) Assume responsibility for the storage and subsequent disposition of embryos formed and cryopreserved as a result of the egg donation, subject to limitations regarding donation of embryos to any other individual for reproductive use or other disposition restrictions as set forth in the contract and agreed upon by all parties.

(c) A donor may condition donation on a reasonable assurance of anonymity so long as non-identifying health information is provided to the intended parent or parents.

(d) A donor who has authorized the limited release of identifying health or other information related to her health history may not revoke that permission once the retrieval procedure has occurred and the donor's egg or eggs have been combined with sperm.

(e) If any of the requirements of this Section are not met, the intended parent or parents shall be presumed to be the legal parents of the child unless a court of competent jurisdiction determines otherwise based on evidence of the parties' intent.

Section 25. Effect of dissolution of marriage or civil union of intended parents or withdrawal of consent.

(a) If a marriage or civil union is dissolved by court order before a pre-embryo or embryo is transferred to a recipient for the purpose of reproduction, the former spouse or partner is not a parent of the resulting child unless the former spouse or partner consented in writing that assisted reproduction may occur after a divorce or dissolution and the former spouse or partner consents to be a legal parent of the child.

(b) The consent of a woman or a man to assisted reproduction may be withdrawn by that individual in writing at any time before a pre-embryo or embryo is transferred for the purpose of reproduction. An individual who withdraws consent under this Section prior to a transfer is not a parent of the resulting child.

(c) If the parties are legally separated or a divorce action or a dissolution action is pending or granted, that shall be deemed to be a withdrawal of consent and any directive executed prior to the separation of filing shall not be honored.

Section 30. Duty to support.

(a) Any person who is considered to be the parent of a child pursuant to this Act is obligated to support the child.

(b) The breach of the egg donation contract by the intended parent or parents does not relieve the intended parent or parents of the support obligations imposed by this Act.

(c) An egg donor may be liable for child support only if she fails to enter into a legal agreement with the intended parent or parents in which the intended parent or parents agree to assume all rights and responsibilities for any resulting child, and the egg donor relinquishes her rights to any gametes, resulting embryos, or children.

Section 35. Noncompliance. Noncompliance by the donor or the intended parent or parents occurs when that party breaches a provision of the egg donation contract.

Section 40. Effect of noncompliance.

(a) Except as otherwise provided in this Act, in the event of noncompliance with the requirements of this Act, a court of competent jurisdiction shall determine the respective rights and obligations of the parties.

(b) There shall be no specific performance remedy available for a breach by the donor of an egg donation contract term that requires her to donate her eggs to another person if the breach occurs prior to the time the donor's egg or eggs have been fertilized with sperm.

Section 45. Damages. In the event of noncompliance:

(a) Except as expressly provided in the egg donation contract, the intended parent or parents are entitled to all remedies available at law or in equity.

(b) Except as expressly provided in the egg donation contract, the donor is entitled to all remedies available at law or in equity.

Section 50. Irrevocability. No action to invalidate an egg donation meeting the requirements of this Act shall be commenced at any time after the point at which the contract meeting the requirements of this Act deems the egg donation irrevocable. No challenge to the rights of parentage established pursuant to this Act and the Illinois Parentage Act of 1984 shall be commenced from the moment of birth of the child.

Section 55. Rulemaking. The Department of Public Health may adopt rules pertaining to the required medical and mental health evaluations for the parties. Until the Department of Public Health adopts rules, medical and mental health evaluations and procedures shall be conducted in accordance with the recommended guidelines published by the American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists. The rules may adopt these guidelines or others by reference.

Section 60. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.