For male same-sex couples in Illinois, gestational surrogacy offers a meaningful and legally supported pathway to parenthood. Illinois law, through the Gestational Surrogacy Act (GSA), recognizes both intended parents as legal parents from the moment of birth, assuming the Act’s requirements are met. However, while the surrogacy process may be secure under Illinois law, it can raise important estate planning questions that same-sex couples should not overlook—especially when only one partner is biologically related to the child.
This article outlines both the legal protections surrounding parentage and why it’s crucial to integrate your family-building journey into your estate plan.
As with all content on this website, this article is educational in nature and is not to be relied upon as legal advice. Consult with an attorney for counsel specific to your circumstances.
Legal Parentage Under the Illinois Gestational Surrogacy Act
Illinois is one of the most favorable jurisdictions in the country for gestational surrogacy. The GSA ensures that intended parents—regardless of sexual orientation or gender identity—are recognized as the legal parents of the child at birth, provided they have a valid surrogacy agreement in place and comply with other statutory requirements.
This means that in a typical arrangement where one partner donates sperm and the couple engages a gestational carrier, both spouses will be listed as legal parents on the original birth certificate.
Yet, despite this clear legal recognition in Illinois, estate planning attorneys are increasingly advising same-sex couples to take additional legal steps, particularly when their estate plans may come under scrutiny in other states or later in life.
Estate Planning Gaps That Surrogacy May Introduce
Even with both names on the birth certificate, there can be estate planning complications, especially if the couple travels, owns property in multiple states, or has extended family members who may challenge the parental status of the non-biological parent.
Key concerns include:
- Inheritance Rights of the Child – If only one parent is biologically related and the other has not obtained a second-parent adoption or declaratory judgment, there is a risk that in the event of the biological parent’s death, the non-biological parent’s estate plan (or lack thereof) could be challenged regarding that child’s right to inherit.
- Recognition in Other States – Some states may not fully recognize the parental rights granted under Illinois law. Without a court order (like a declaratory judgment or second-parent adoption), Full Faith and Credit protections under the U.S. Constitution may not apply, leading to complications in guardianship, custody, or inheritance matters.
- Survivorship and Guardianship – If one parent dies, the surviving parent may face legal obstacles asserting parental rights outside of Illinois, unless their status has been judicially affirmed. This can also affect the designation of legal guardians for minor children in a will or trust.
- Trust Planning – If only one parent is recognized as the legal parent of the child in another jurisdiction, the child could unintentionally be excluded from inheritance under certain trust provisions, especially those using biological or legal parentage as criteria.
Legal Strategies to Protect Your Family
To mitigate these risks and build a secure future for your child, consider the following legal tools as part of a comprehensive estate plan:
1. Second-Parent Adoption or Declaratory Judgment
Even though Illinois birth certificates recognize both intended parents, securing a court order affirming both parents’ legal status is a critical layer of protection. This step strengthens your family’s legal foundation and helps ensure that other states will honor your parental rights under the Full Faith and Credit Clause of the U.S. Constitution.
- A second-parent adoption provides an independent legal judgment of parentage.
- A declaratory judgment under the GSA or the Illinois Parentage Act of 2015 serves the same purpose without needing to terminate parental rights from the biological parent (since the donor has none under Illinois law when properly severed—see below).
2. Customized Wills and Trusts
Estate planning documents should be drafted with the couple’s unique family structure in mind. A well-drafted trust or will can:
- Clarify each parent’s intent regarding inheritance rights
- Ensure guardianship preferences are respected
- Prevent extended family challenges
- Account for property or trust laws in other jurisdictions
Planning for Peace of Mind
Surrogacy is not just a medical or legal process—it’s also the beginning of a new legacy. For male gay couples in Illinois, the legal landscape is supportive, but not always bulletproof, particularly when it comes to interstate recognition and estate planning.
By working with attorneys familiar with surrogacy and estate law, you can ensure your legal parentage is protected and your estate plan fully reflects and secures your family’s future. Whether through a second-parent adoption, declaratory judgment, or strategic trust planning, these steps help ensure that your child’s rights—and your intentions—are honored in every jurisdiction, at every stage of life.
