Full Text of HB4962 93rd General Assembly
HB4962eng 93RD GENERAL ASSEMBLY
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| AN ACT concerning surrogacy.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the | 5 |
| Gestational Surrogacy Act. | 6 |
| Section 5. Purpose. The purpose of this Act is to establish | 7 |
| consistent standards and procedural safeguards for the | 8 |
| protection of all parties involved in a gestational surrogacy | 9 |
| contract in this State and to confirm the legal status of | 10 |
| children born as a result of these contracts. These standards | 11 |
| and safeguards are meant to facilitate the use of this type of | 12 |
| reproductive contract in accord with the public policy of this | 13 |
| State. | 14 |
| Section 10. Definitions. As used in this Act: | 15 |
| "Compensation" means payment of any valuable consideration | 16 |
| for services in excess of reasonable medical and ancillary | 17 |
| costs. | 18 |
| "Donor" means an individual who contributes a gamete or | 19 |
| gametes for the purpose of in vitro fertilization or | 20 |
| implantation in another. | 21 |
| "Gamete" means either a sperm or an egg. | 22 |
| "Gestational surrogacy" means the process by which a woman | 23 |
| attempts to carry and give birth to a child created through in | 24 |
| vitro fertilization using the gamete or gametes of at least one | 25 |
| of the intended parents and to which the gestational surrogate | 26 |
| has made no genetic contribution. | 27 |
| "Gestational surrogate" means a woman who agrees to engage | 28 |
| in a gestational surrogacy. | 29 |
| "Gestational surrogacy contract" means a written agreement | 30 |
| regarding gestational surrogacy. | 31 |
| "Health care provider" means a person who is duly licensed |
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| to provide health care, including all medical, psychological, | 2 |
| or counseling professionals. | 3 |
| "Intended parent" means a person or persons who enters into | 4 |
| a gestational surrogacy contract with a gestational surrogate | 5 |
| pursuant to which he or she will be the legal parent of the | 6 |
| resulting child. In the case of a married couple, any reference | 7 |
| to an intended parent shall include both husband and wife for | 8 |
| all purposes of this Act. This term shall include the intended | 9 |
| mother, intended father, or both.
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| "In vitro fertilization" means all medical and laboratory | 11 |
| procedures that are necessary to effectuate the extracorporeal | 12 |
| fertilization of egg and sperm. | 13 |
| "Medical evaluation" means an evaluation and consultation | 14 |
| of a physician meeting the requirements of Section 60. | 15 |
| "Mental health evaluation" means an evaluation and | 16 |
| consultation of a mental health professional meeting the | 17 |
| requirements of Section 60. | 18 |
| "Physician" means a person licensed to practice medicine in | 19 |
| all its branches in Illinois. | 20 |
| "Pre-embryo" means a fertilized egg prior to 14 days of | 21 |
| development. | 22 |
| "Pre-embryo transfer" means all medical and laboratory | 23 |
| procedures that are necessary to effectuate the transfer of a | 24 |
| pre-embryo into the uterine cavity. | 25 |
| Section 15. Rights of Parentage. | 26 |
| (a) Except as provided in this Act, the woman who gives | 27 |
| birth to a child is presumed to be the mother of that child for | 28 |
| purposes of State law. | 29 |
| (b) In the case of a gestational surrogacy satisfying the | 30 |
| requirements set forth in subsection (d) of this Section: | 31 |
| (1) the intended mother shall be the mother of the | 32 |
| child for purposes of State law immediately upon the birth | 33 |
| of the child; | 34 |
| (2) the intended father shall be the father of the | 35 |
| child for purposes of State law immediately upon the birth |
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| of the child; | 2 |
| (3) the child shall be considered the legitimate child | 3 |
| of the intended parent or parents for purposes of State law | 4 |
| immediately upon the birth of the child; | 5 |
| (4) parental rights shall vest in the intended parent | 6 |
| or parents immediately upon the birth of the child; | 7 |
| (5) sole custody of the child shall rest with the | 8 |
| intended parent or parents immediately upon the birth of | 9 |
| the child; and | 10 |
| (6) neither the gestational surrogate nor her husband, | 11 |
| if any, shall be the parents of the child for purposes of | 12 |
| State law immediately upon the birth of the child. | 13 |
| (c) In the case of a gestational surrogacy meeting the | 14 |
| requirements set forth in subsection (d) of this Section, in | 15 |
| the event of a laboratory error in which the resulting child is | 16 |
| not genetically related to either of the intended parents, the | 17 |
| intended parents will be the parents of the child for purposes | 18 |
| of State law unless otherwise determined by a court of | 19 |
| competent jurisdiction. | 20 |
| (d) The parties to a gestational surrogacy shall assume the | 21 |
| rights and obligations of subsections (b) and (c) of this | 22 |
| Section if: | 23 |
| (1) the gestational surrogate satisfies the | 24 |
| eligibility requirements set forth in subsection (a) of | 25 |
| Section 20; | 26 |
| (2) the intended parent or parents satisfy the | 27 |
| eligibility requirements set forth in subsection (b) of | 28 |
| Section 20; and | 29 |
| (3) the gestational surrogacy occurs pursuant to a | 30 |
| gestational surrogacy contract meeting the requirements | 31 |
| set forth in Section 25. | 32 |
| Section 20. Eligibility. | 33 |
| (a) A gestational surrogate shall be deemed to have
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| satisfied the requirements of this Act if she has met the
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| following requirements at the time the gestational
surrogacy |
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| contract is executed: | 2 |
| (1) she is at least 21 years of age; | 3 |
| (2) she has given birth to at least one child; | 4 |
| (3) she has completed a medical evaluation; | 5 |
| (4) she has completed a mental health evaluation; | 6 |
| (5) she has undergone legal consultation with | 7 |
| independent legal counsel regarding the terms of the | 8 |
| gestational surrogacy contract and the potential legal | 9 |
| consequences of the gestational surrogacy; and | 10 |
| (6) she has obtained a health insurance policy that | 11 |
| covers major medical treatments and hospitalization and | 12 |
| the health insurance policy has a term that extends | 13 |
| throughout the duration of the expected pregnancy and for 8 | 14 |
| weeks after the birth of the child; provided, however, that | 15 |
| the policy may be procured by the intended parents on | 16 |
| behalf of the gestational surrogate pursuant to the | 17 |
| gestational surrogacy contract. | 18 |
| (b) The intended parent or parents shall be deemed to have | 19 |
| satisfied the requirements of this Act if he, she, or they have | 20 |
| met the following requirements at the time the gestational | 21 |
| surrogacy contract is executed: | 22 |
| (1) he, she, or they contribute at least one of the | 23 |
| gametes resulting in a pre-embryo that the gestational | 24 |
| surrogate will attempt to carry to term; | 25 |
| (2) he, she, or they have a medical need for the | 26 |
| gestational surrogacy as evidenced by a qualified | 27 |
| physician's affidavit attached to the gestational | 28 |
| surrogacy contract and as required by the Illinois | 29 |
| Parentage Act of 1984; | 30 |
| (3) he, she, or they have completed a mental health | 31 |
| evaluation; and | 32 |
| (4) he, she, or they have undergone legal consultation | 33 |
| with independent legal counsel regarding the terms of the | 34 |
| gestational surrogacy contract and the potential legal | 35 |
| consequences of the gestational surrogacy. |
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| Section 25. Requirements for a gestational surrogacy | 2 |
| contract. | 3 |
| (a) A gestational surrogacy contract shall be presumed | 4 |
| enforceable for purposes of State law only if: | 5 |
| (1) it meets the contractual requirements set forth in | 6 |
| subsection (b) of this Section; and | 7 |
| (2) it contains at a minimum each of the terms set | 8 |
| forth in subsection (c) of this Section. | 9 |
| (b) A gestational surrogacy contract shall meet the | 10 |
| following requirements: | 11 |
| (1) it shall be in writing; | 12 |
| (2) it shall be executed prior to the commencement of | 13 |
| any medical procedures (other than medical or mental health | 14 |
| evaluations necessary to determine eligibility of the | 15 |
| parties pursuant to Section 20 of this Act) in furtherance | 16 |
| of the gestational surrogacy: | 17 |
| (i) by a gestational surrogate meeting the | 18 |
| eligibility requirements of subsection (a) of Section | 19 |
| 20 of this Act and, if married, the gestational | 20 |
| surrogate's husband; and | 21 |
| (ii) by the intended parent or parents meeting the | 22 |
| eligibility requirements of subsection (b) of Section | 23 |
| 20 of this Act. In the event an intended parent is | 24 |
| married, both husband and wife must execute the | 25 |
| gestational surrogacy contract; | 26 |
| (3) each of the gestational surrogate and the intended | 27 |
| parent or parents shall have been represented by separate | 28 |
| counsel in all matters concerning the gestational | 29 |
| surrogacy and the gestational surrogacy contract; | 30 |
| (3.5) each of the gestational surrogate and the | 31 |
| intended parent or parents shall have signed a written | 32 |
| acknowledgement that he or she received information about | 33 |
| the legal, financial, and contractual rights, | 34 |
| expectations, penalties, and obligations of the surrogacy | 35 |
| agreement; | 36 |
| (4) if the gestational surrogacy contract provides for |
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| the payment of compensation to the gestational surrogate, | 2 |
| the compensation shall have been placed in escrow with an | 3 |
| independent escrow agent prior to the gestational | 4 |
| surrogate's commencement of any medical procedure (other | 5 |
| than medical or mental health evaluations necessary to | 6 |
| determine the gestational surrogate's eligibility pursuant | 7 |
| to subsection (a) of Section 20 of this Act); and | 8 |
| (5) it shall be witnessed by 2 competent adults. | 9 |
| (c) A gestational surrogacy contract shall provide for: | 10 |
| (1) the express written agreement of the gestational | 11 |
| surrogate to: | 12 |
| (i) undergo pre-embryo transfer and attempt to | 13 |
| carry and give birth to the child; and | 14 |
| (ii) surrender custody of the child to the intended | 15 |
| parent or parents immediately upon the birth of the | 16 |
| child; | 17 |
| (2) if the gestational surrogate is married, the | 18 |
| express agreement of her husband to: | 19 |
| (i) undertake the obligations imposed on the | 20 |
| gestational surrogate pursuant to the terms of the | 21 |
| gestational surrogacy contract; | 22 |
| (ii) surrender custody of the child to the intended | 23 |
| parent or parents immediately upon the birth of the | 24 |
| child; | 25 |
| (3) the right of the gestational surrogate to utilize | 26 |
| the services of a physician of her choosing, after | 27 |
| consultation with the intended parents, to provide her care | 28 |
| during the pregnancy; and | 29 |
| (4) the express written agreement of the intended | 30 |
| parent or parents to: | 31 |
| (i) accept custody of the child immediately upon | 32 |
| his or her birth; and | 33 |
| (ii) assume sole responsibility for the support of | 34 |
| the child immediately upon his or her birth. | 35 |
| (d) A gestational surrogacy contract shall be presumed | 36 |
| enforceable for purposes of State law even though it contains |
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| one or more of the following provisions: | 2 |
| (1) the gestational surrogate's agreement to undergo | 3 |
| all medical exams, treatments, and fetal monitoring | 4 |
| procedures that the physician recommended for the success | 5 |
| of the pregnancy; | 6 |
| (2) the gestational surrogate's agreement to abstain | 7 |
| from any activities that the intended parent or parents or | 8 |
| the physician reasonably believes to be harmful to the | 9 |
| pregnancy and future health of the child, including, | 10 |
| without limitation, smoking, drinking alcohol, using | 11 |
| nonprescribed drugs, using prescription drugs not | 12 |
| authorized by a physician aware of the gestational | 13 |
| surrogate's pregnancy, exposure to radiation, or any other | 14 |
| activities proscribed by a health care provider; | 15 |
| (3) the agreement of the intended parent or parents to | 16 |
| pay the gestational surrogate reasonable compensation; and | 17 |
| (4) the agreement of the intended parent or parents to | 18 |
| pay for or reimburse the gestational surrogate for | 19 |
| reasonable expenses (including, without limitation,
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| medical, legal, or other professional expenses) related to | 21 |
| the gestational surrogacy and the gestational surrogacy | 22 |
| contract. | 23 |
| (e) In the event that any of the requirements of this | 24 |
| Section are not met, a court of competent jurisdiction shall | 25 |
| determine parentage based on evidence of the parties' intent. | 26 |
| Section 30. Duty to support. | 27 |
| (a) Any person who is considered to be the parent of a | 28 |
| child pursuant to Section 15 of this Act shall be obligated to | 29 |
| support the child. | 30 |
| (b) The breach of the gestational surrogacy contract by the | 31 |
| intended parent or parents shall not relieve such intended | 32 |
| parent or parents of the support obligations imposed by this | 33 |
| Act. | 34 |
| (c) A gamete donor may be liable for child support only if | 35 |
| he or she fails to enter into a legal agreement with the |
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| intended parent or parents in which the intended parent or | 2 |
| parents agree to assume all rights and responsibilities for any | 3 |
| resulting child, and the gamete donor relinquishes his or her | 4 |
| rights to any gametes, resulting embryos, or children. | 5 |
| Section 35. Establishment of the parent-child | 6 |
| relationship. | 7 |
| (a) For purposes of the Illinois Parentage Act of 1984, a | 8 |
| parent-child relationship shall be established prior to the | 9 |
| birth of a child born through gestational surrogacy if, in | 10 |
| addition to satisfying the requirements of Sections 5 and 6 of | 11 |
| the Illinois Parentage Act of 1984, the attorneys representing | 12 |
| both the gestational surrogate and the intended parent or | 13 |
| parents certify that the parties entered into a gestational | 14 |
| surrogacy contract intended to satisfy the requirements of | 15 |
| Section 25 of this Act with respect to the child. | 16 |
| (b) The attorneys' certifications required by subsection | 17 |
| (a) of this Section shall be filed on forms prescribed by the | 18 |
| Illinois Department of Public Health and in a manner consistent | 19 |
| with the requirement of the Illinois Parentage Act of 1984. | 20 |
| Section 40. Immunities. Except as provided in this Act, no | 21 |
| person shall be civilly or criminally liable for non-negligent | 22 |
| actions taken pursuant to the requirements of this Act. | 23 |
| Section 45. Noncompliance. Noncompliance by the | 24 |
| gestational surrogate or the intended parent or parents occurs | 25 |
| when that party breaches a provision of the gestational | 26 |
| surrogacy contract. | 27 |
| Section 50. Effect of Noncompliance. | 28 |
| (a) Except as otherwise provided in this Act, in the event | 29 |
| of noncompliance with the requirements of subsection (d) of | 30 |
| Section 15 of this Act, a court of competent jurisdiction shall | 31 |
| determine the respective rights and obligations of the parties. | 32 |
| (b) There shall be no specific performance remedy available |
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| for a breach by the gestational surrogate of a gestational | 2 |
| surrogacy contract term that requires her to be impregnated. | 3 |
| Section 55. Damages. | 4 |
| (a) Except as expressly provided in the gestational | 5 |
| surrogacy contract, the intended parent or parents shall be | 6 |
| entitled to all remedies available at law or equity. | 7 |
| (b) Except as expressly provided in the gestational | 8 |
| surrogacy contract, the gestational surrogate shall be | 9 |
| entitled to all remedies available at law or equity. | 10 |
| Section 60. Rulemaking. The Department of Public Health may | 11 |
| adopt rules pertaining to the required medical and mental | 12 |
| health evaluations for a gestational surrogacy contract. Until | 13 |
| the Department of Public Health adopts such rules, medical and | 14 |
| mental health evaluations and procedures shall be conducted in | 15 |
| accordance with the recommended guidelines published by the | 16 |
| American Society for Reproductive Medicine and the American | 17 |
| College of Obstetricians and Gynecologists. The rules may adopt | 18 |
| these guidelines or others by reference. | 19 |
| Section 65. Severability. If any provision of this Act or | 20 |
| its application to any person or circumstance is held invalid, | 21 |
| the invalidity of that provision or application does not affect | 22 |
| other provisions or applications of this Act that can be given | 23 |
| effect without the invalid provision or application. | 24 |
| Section 70. Irrevocability. No action to invalidate a | 25 |
| gestational surrogacy meeting the requirements of subsection | 26 |
| (d) of Section 15 of this Act or to challenge the rights of | 27 |
| parentage established pursuant to Section 15 of this Act and | 28 |
| the Illinois Parentage Act of 1984 shall be commenced after 12 | 29 |
| months from the date of birth of the child. | 30 |
| Section 75. Application. The provisions of this Act shall | 31 |
| apply only to gestational surrogacy contracts entered into |
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| after the effective date of this Act.
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| Section 800. The Illinois Parentage Act of 1984 is amended | 3 |
| by changing Section 6 and by adding Section 2.5 as follows: | 4 |
| (750 ILCS 45/2.5 new)
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| Sec. 2.5. Definitions. As used in this Act, the terms | 6 |
| "gestational surrogacy", "gestational surrogate", and | 7 |
| "intended parent" have the same meanings as the terms are | 8 |
| defined in Section 10 of the Gestational Surrogacy Act.
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| (750 ILCS 45/6) (from Ch. 40, par. 2506)
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| Sec. 6. Establishment of Parent and Child Relationship by | 11 |
| Consent of
the Parties.
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| (a) A parent and child relationship may be established | 13 |
| voluntarily by the
signing and witnessing of a voluntary | 14 |
| acknowledgment of parentage in accordance
with Section 12 of | 15 |
| the Vital Records Act ,
or Section 10-17.7 of the Illinois
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| Public Aid Code , or the provisions of the Gestational Surrogacy | 17 |
| Act .
The voluntary acknowledgment of parentage shall contain | 18 |
| the social security
numbers of the persons signing the | 19 |
| voluntary acknowledgment of parentage;
however,
failure to | 20 |
| include the
social security numbers of the persons signing a | 21 |
| voluntary acknowledgment of
parentage does not
invalidate the | 22 |
| voluntary acknowledgment of parentage.
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| (1) A parent-child relationship may be established in | 24 |
| the event of
gestational surrogacy if all of the following | 25 |
| conditions are met prior to the birth of the
child:
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| (A) The gestational surrogate mother certifies | 27 |
| that she is not the biological mother
of the child, and | 28 |
| that she is carrying the child for
of the intended | 29 |
| parents
biological father
(sperm donor) and of the | 30 |
| biological mother (egg donor) .
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| (B) The husband, if any, of the gestational
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| surrogate mother certifies that he is
not the | 33 |
| biological father of the child and that the child is |
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| that of the
biological father (sperm donor) and of the | 2 |
| biological mother (egg donor) .
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| (C) The intended
biological mother certifies that | 4 |
| she provided or an egg donor donated the egg from which
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| the child being carried by the gestational surrogate | 6 |
| mother was conceived.
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| (D) The intended
biological father certifies that | 8 |
| he provided or a sperm donor donated the sperm from | 9 |
| which
the child being carried by the gestational
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| surrogate mother was conceived.
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| (E) A physician licensed to practice medicine in | 12 |
| all its branches in the
State of Illinois certifies | 13 |
| that the child being carried by the gestational
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| surrogate
mother is the biological child of the | 15 |
| intended
biological mother (egg donor) and
intended
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| biological father (sperm donor), and that neither the | 17 |
| gestational
surrogate mother nor the
gestational | 18 |
| surrogate's
surrogate mother's husband, if any, is a | 19 |
| biological parent of the child being
carried by the | 20 |
| gestational surrogate mother .
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| (E-5) The attorneys for the intended parents and | 22 |
| the gestational surrogate each certifies that the | 23 |
| parties entered into a gestational surrogacy contract | 24 |
| intended to satisfy the requirements of Section 25 of | 25 |
| the Gestational Surrogacy Act with respect to the | 26 |
| child.
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| (F) All certifications shall be in writing and | 28 |
| witnessed by 2 competent
adults who are not the | 29 |
| gestational surrogate mother , gestational surrogate's
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| surrogate mother's husband, if any,
intended
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| biological mother, or intended
biological father. | 32 |
| Certifications shall be on forms
prescribed by the | 33 |
| Illinois Department of Public Health, shall be | 34 |
| executed prior
to the birth of the child, and shall be | 35 |
| placed in the medical records of the
gestational
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| surrogate mother prior to the birth of the child. |
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| Copies of all
certifications shall be delivered to the | 2 |
| Illinois Department of Public Health
prior to the birth | 3 |
| of the child.
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| (2) Unless otherwise determined by order of the Circuit | 5 |
| Court, the child
shall be presumed to be the child of the | 6 |
| gestational surrogate mother and of the gestational | 7 |
| surrogate's
surrogate
mother's husband, if any, if all | 8 |
| requirements of subdivision (a)(1) are not
met
prior to the | 9 |
| birth of the child. This presumption may be rebutted by | 10 |
| clear and
convincing evidence. The circuit court may order | 11 |
| the gestational surrogate mother ,
gestational surrogate's
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| surrogate mother's husband, intended
biological mother, | 13 |
| intended
biological father, and child to
submit to such | 14 |
| medical examinations and testing as the court deems
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| appropriate.
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| (b) Notwithstanding any other provisions of this Act, | 17 |
| paternity established
in accordance with subsection (a) has the | 18 |
| full force and effect of a judgment
entered under this Act and | 19 |
| serves as a basis for seeking a child support order
without any | 20 |
| further proceedings to establish paternity.
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| (c) A judicial or administrative proceeding to ratify | 22 |
| paternity
established
in accordance with subsection (a) is | 23 |
| neither required nor permitted.
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| (d) A signed acknowledgment of paternity entered under this | 25 |
| Act may be
challenged in court only on the basis of fraud, | 26 |
| duress, or material mistake of
fact, with the burden of proof | 27 |
| upon the challenging party. Pending outcome of
the challenge to | 28 |
| the acknowledgment of paternity, the legal responsibilities of
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| the signatories shall remain in full force and effect, except | 30 |
| upon order of the
court upon a showing of good cause.
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| (e) Once a parent and child relationship is established in | 32 |
| accordance with
subsection (a), an order for support may be | 33 |
| established pursuant to a petition
to establish an order for | 34 |
| support by consent filed with the clerk of the
circuit court. A | 35 |
| copy of the properly completed acknowledgment of parentage
form | 36 |
| shall be attached to the petition. The petition shall ask that |
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circuit court enter an order for support. The petition may | 2 |
| ask that an order
for visitation, custody, or guardianship be | 3 |
| entered. The filing and appearance
fees provided under the | 4 |
| Clerks of Courts Act shall be waived for all cases in
which an | 5 |
| acknowledgment of parentage form has been properly completed by | 6 |
| the
parties and in which a petition to establish an order for | 7 |
| support by consent
has been filed with the clerk of the circuit | 8 |
| court. This subsection shall not
be construed to prohibit | 9 |
| filing any petition for child support, visitation, or
custody | 10 |
| under this Act, the Illinois Marriage and Dissolution of | 11 |
| Marriage Act,
or the Non-Support Punishment Act. This | 12 |
| subsection shall also not
be construed to prevent the | 13 |
| establishment of
an administrative support order in cases | 14 |
| involving persons receiving child
support enforcement services | 15 |
| under Article X of the Illinois Public Aid Code.
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| (Source: P.A. 91-308, eff. 7-29-99; 91-613, eff. 10-1-99; | 17 |
| 92-16, eff.
6-28-01)
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