The Journal of The DuPage County Bar Association

Back Issues > Vol. 20 (2007-08)

Non-Traditional Families and Alternative Family Building:  Securing Parental Rights for Intended Parents
by Debra J. Braselton and Maxine Weiss Kunz

Through a series of cases, the U.S. Supreme Court has recognized an individual’s 14th Amendment right to privacy in matters of procreation and the raising of children.1 Under Illinois law, certain classes of parents are vested with parental rights upon the birth of a child. The Illinois Parentage Act of 1984 provides that any woman who gives birth to a child is presumed to be its legal mother.2 If a woman is married at the time of birth, her husband is presumed to be the legal father of the child.3 However, for certain non-traditional parents, the right to have and raise children is not quite so "fundamental". Individuals who are unable reproduce biologically, such as those who are single, in same-sex relationships or are in unmarried heterosexual relation-ships and are unable to conceive naturally, must use alternative family building methods to have a child. Alternative family building methods include assisted reproductive technologies (donor eggs/sperm, artificial insemination, in vitro fertilization, surrogacy) and adoption. All of these alternative family building methods are intrusive, expensive, highly regulated and an inherent infringe-ment on the individual’s right to privacy. Illinois law has not evolved to the point that the parental rights of all intended parents vest automatically upon birth or are able to be established by consent of the parents, without need of a judicial proceeding. This article explains the various methods of alternative family building and legal processes that may be required in order to vest the intended parents with parental rights.

Family Forms in America Today. The traditional married nuclear family (married couple raising children together, dad works, mom stays at home) is now a minority form of family households4 in the United States. The number of children who live with one biological parent and either a stepparent or adoptive parent increased from 4.5 million to 5.2 million between 1991 and 1996. Single parents account for 27% of family households and are the fastest growing form of family in America. Currently, 90% of single parent households are headed by women. The number of unmarried partner households has increased by 72% in the last decade from 3 million in 1990 to more than 5 million in 2000.5 These figures include both same-sex and different-sex couples. It is estimated that there are approximately 4 million gay men and lesbian women raising between 8 and 10 million children in this country. The increase in the number of non-traditional households in this country is resulting in an increase in the use of alternative methods of family building.

Adoption. Adoption is the most common form of family building utilized by non-traditional families and single persons. In the United States, 1.6 million children under the age of eighteen live with their adoptive parents.6 More than 100,000 children are adopted each year by American citizens. In Illinois, more than 6,000 children are adopted each year.7 These numbers include private and agency adoptions, intra-family and step-parent adoptions, and international adoptions.

When discussing adoption of children by non-traditional families, it is useful to understand some commonly used terms. A related adoption is statutorily defined as one in which one or both of the adopting parents is related to the child by blood or marriage as parent, step-parent, grandparent, step-grandparent, sibling, step-sibling, aunt/uncle, great aunt/uncle or cousin of the first degree.8 A second-parent adoption is the adoption of a child by an unmarried couple when one of the partners is related to the child by birth or adoption. A co-parent adoption is the adoption of a child by an unmarried couple when neither of the partners is related to the child by birth or adoption. An intercountry adoption is the process by which a child from a country other than the United States is adopted. 9 In non-traditional families, such as gay and lesbian households, it is typical for one of the partners to travel and adopt the child in the foreign country and to re-adopt the child in a second-parent adoption proceeding upon return to the U.S.

The Illinois Adoption Act10 governs adoption proceedings in this State. Section 2 of the Adoption Act defines who may adopt: "a reputable person of legal age and of either sex, provided that if such person is married and has not been living separate and apart from his or her spouse for 12 months or longer, his or her spouse shall be a party to the adoption proceeding, including a husband or wife desiring to adopt a child of the other spouse, in all of which cases the adoption shall be by both spouses jointly."11 Section 2 of the Adoption Act makes no distinction between race, ethnicity, sexual orientation, etc. Illinois courts have held that sexual orientation, in and of itself, is not relevant to the determinations of custody12, visitation rights13 or standing to adopt a related child. 14

The process of adopting a minor child, if uncontested, is relatively simple. The statute requires that a guardian ad litem (GAL) be appointed to represent minors sought to be adopted in Illinois.15 Among the duties of the GAL are to determine the validity of any consents or surrenders; to ascertain that the child is available for adoption16; to review the investigative report on the adoptive parent(s) and to report to the court on whether the adoption is in the best interests of the child. In related adoptions and second-parent adoptions, the parent who is related to the child evidences his/her consent by signing the verified petition, rather than through a formal consent procedure.

An adoptive home investigation is required in all cases where a minor is being adopted by parents who are unrelated to the minor. The home investigation is discretionary in related adoptions. The person or agency appointed by the court must investigate, fully and promptly, the allegations contained in the petition; the character, reputation, health and general standing in the community of the petitioners; the religious faith of the petitioners and, if ascertainable, of the child sought to be adopted; and whether the petitioners are proper persons to adopt the child and whether the child is a proper subject of adoption."17 The investigation must include a criminal background report of the prospective adoptive parents and a fingerprint check by the Illinois State Police and FBI.

In the usual case, where the child is available for adoption, if the investigative report of the adoptive family home is acceptable and the GAL recommends that the adoption is in the best interests of the child, there is no need for an evidentiary hearing on best interests and a judgment order for adoption is entered. As is illustrated in the cases below, if the petitioners are non-traditional couples, adoption is not always such a simple process.

Caselaw on Same-sex Couple (Second-Parent) Adoption in Illinois. Petition of K.M. involved two separate Cook County adoption cases with similar facts. The cases were not consolidated but were briefed and argued simultaneously. In each case, the issue on appeal was whether same-sex couples have standing to adopt under the Illinois Adoption Act. In both cases, the petitioners were lesbian couples jointly petitioning to adopt a child who was related to one of the petitioners by birth or adoption (second-parent adoptions). In both cases, the GAL filed a Motion to Dismiss the Petition for lack of standing. The GAL argued that only couples who are married to one another can jointly petition to adopt under the Illinois Adoption Act. The trial court agreed with the GAL and ruled that the petitioners lacked standing to jointly petition to adopt because the plural interpretation of the word "person" in Section 2 is limited to married couples. On appeal, the Court found that the Adoption Act expressly provides for plural construction to be given to singular terms, including the word "person" in Section 2 in a related adoption. The Court applied liberal construction to the language of the Adoption Act and opined that "a brother and sister, for example, would have standing to petition for adoption, as would two unmarried first cousins (of either sex), or (as in these cases) one parent of the child (of either sex) and that parent’s unmarried partner (of either sex). In each of these cases, and in many more that could be envisioned, two unmarried persons are enabled by the Adoption Act to join to adopt a child related to either or both".18

The K.M. Court specifically found that the sexual orientation of the petitioners was not a bar to the proposed adoptions, stating that "[n]othing in the Act suggests that sexual orientation is a relevant consideration, and lesbians and gay men are permitted to adopt in Illinois."19 The Court reversed the trial court’s grant of the GAL’s Motions to Dismiss and remanded both cases for best interest hearings.

The decision in the K.M. case appeared to clear the way for same-sex adoptions in Illinois. However, the issue of whether an adoptive parent’s sexual orientation is relevant to the best interests of the child was not addressed in that case. Four years after the decision in K.M., the 1st District began to address this issue with its decision in In re C.M.A. In re C.M.A.20 involved two separate adoption cases that were consolidated on appeal. In both cases, the petitioners were lesbian couples jointly petitioning to adopt the child(ren) of one of the partners. In the first of the two cases, the investigative report was favorable and the GAL recommended that the adoption was in the best interests of the child, expecting that a Judgment for adoption would be entered "off-call", as is usual in uncontested adoptions in Cook County. Instead, the trial judge sua sponte ordered a best interests hearing. The evidence presented at trial through the testimony of the petitioners and the court-appointed investigator was overwhelmingly positive regarding the petitioners’ parenting skills and commitment to the child. The trial judge’s bias against the lesbian petitioners became evident when the only questions the court asked of the petitioners involved their sexual orientation and sexual relationship. At the close of the hearing and for months afterward, the judge continued the case and refused to indicate when a ruling would be issued because she was deciding another case with "similar issues" and refused to make a ruling in this case until hearing evidence in the other case. The parties moved the presiding judge to remove the trial judge for cause based upon her decision to consider evidence in the second, wholly unrelated, case before ruling in their case. The motion was heard and granted by the presiding judge and he entered a final judgment for adoption four days later.

On appeal, one issue was whether the motions for substitution of judge were improperly brought because they were presented to the presiding judge, rather than to the trial judge. The Appellate Court found that although the better practice would have been to file the petitions in the trial court first, the exigencies of this case precluded that and affirmed the presiding judge’s orders granting the motions for substitution of judge for cause. The second issue presented was whether the trial court had erred in appointing the Family Research Council ("FRC") as a secondary guardian and the answer was a resounding "yes". First, there is no statutory provision for a secondary guardian in the Adoption Act. Second, FRC had no rights at stake in either of the two adoption cases and intervention is allowed only where a party has an enforceable or recognizable right. The Court found that the trial judge improperly disseminated sensitive and confidential information to non-parties in violation of Section 18 of the Adoption Act.

The C.M.A. Court found that the trial judge had an "extreme and patent bias against the adoptive parents based upon their sexual orientation and that she joined together two totally separate adoptions, whose only common thread was the sexual orientation of the adoptive parents. As a result, she not only injected inadmissible facts into each of the cases, but also inflicted anguish on the petitioners and needlessly prolonged what should have been a simple and straightforward process". The Court stated that the "petitioners came to our state court system in order to be allowed to adopt children, children with whom they had already formed a loving relationship over a period of time. A higher purpose cannot be imagined. To have the Petitioners treated in the manner that they were is nothing less than appalling."21

While it appears that same-sex couples may adopt as second-parents in Illinois, there are differences in the way same-sex couples and married couples adopting as step-parents are treated in Illinois, specifically in pleadings, home investigation, best interests determination and timing of entry of final judgment.22 The Act does not require that married persons state the date of their marriage. However, same-sex partners are required to state the length of cohabitation between the petitioners and most courts have looked for a period of cohabitation exceeding one year.23 In a related adoption, the court has the discretion to waive the adoptive home investigation. However, in every reported case involving same-sex second-parent adoption, a home investigation was required by the court. In related adoptions, Judgment may be entered at any time after the child has been served and parental rights, if any, have been terminated. It is common practice for the court to enter final judgment as soon as the fingerprint check and GAL’s report are received – a matter of weeks in many cases. However, in Cook County, the court will not enter judgment in a related adoption where the petitioners are a same-sex couple until the petitioners and child have lived together for at least three months.24 Perhaps the most significant difference between married couples and same-sex couples in related adoptions is the conduct (or not) of an evidentiary best interests hearing. In most step-parent adoptions, the recommendation of the GAL results in a finding by the court that the adoption is in the best interests of the child and no hearing is held. However, in second-parent adoptions involving same-sex couples, it is common for the court to conduct a best interest hearing even where the adoption is uncontested. No reported Illinois cases were found in which a petition for adoption was denied solely because the petitioners were homosexual. If the Illinois Religious Freedom Protection and Civil Union Act25 becomes law, the parental rights of same-sex partners to children born to or adopted by the couple after registration26 of their partnership will be much easier to achieve.

Assisted Reproductive Technology. Because cloning is not yet available in humans, single individuals and same-sex couples cannot create genetically related children unless they receive donor gametes from an opposite sex person. The same holds true for heterosexual couples in which one or both of the partners are infertile. Assisted Reproductive Technology (ART) is any medical procedure designed to bring about a conception without sexual intercourse. Examples include artificial insemination, in vitro fertilization and embryo transfer. Collaborative reproduction, also called "third party reproduction", encompasses procedures undertaken by intended parent(s) in order to conceive using genetic material that is not their own. Examples include, donor sperm, donor egg and donor embryos.

Artificial Insemination. Any woman who gives birth to a child in Illinois (with the exception of gestational surrogates) is deemed to be that child’s legal mother. 27 The Illinois Parentage Act of 1984 provides that any child or children born as the result of heterologous (donor) artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife so requesting and consenting to the use of such technique.28 The Parentage Act of 1984 further provides that if a husband consents in writing to his wife’s artificial insemination and same is performed by a licensed physician, the husband shall be deemed to be the legal father of the child.29 The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife shall be treated in law as if he were not the natural father of a child thereby conceived.30 Note that a sperm donor does not have parental rights if the semen is provided to a physician and the artificial insemination procedure is performed by a physician. Women who choose to obtain sperm from a male friend and inseminate themselves risk a paternity challenge from the sperm donor.

These provisions vest single women or married couples with parental rights at birth without need of a judicial proceeding. However, they do not address the rights and obligations of the other intended parents, such as the partner of the woman who is inseminated and gives birth to the child in lesbian relationships or the genetic father of a child in unmarried, heterosexual relationships. Indeed, our Supreme Court, when discussing the artificial insemination provisions of the Illinois Parentage Act of 1984, stated: "In its current form, the Illinois Parentage Act fails to address the full spectrum of legal problems facing children born as a result of artificial insemination and other modern methods of assisted reproduction. The rapid evolution of assisted reproduction technology will continue to produce legal problems similar to those presented in this case.

In Re Parentage of M.J. 31 involved an unmarried, heterosexual couple who were in a relationship for ten years and were unable to conceive biologically. The couple jointly decided to pursue artificial insemination of the female partner, both parties participated in the selection of the donor and the male partner paid for the costs of the artificial insemination procedures. After the fifth attempt at artificial insemination, the female partner conceived and gave birth to twin boys. The male partner held the children out as his own and provided financial support in the form of monthly payments of cash and the purchase of food, clothing, furniture, toys, medical, travel and entertainment expenses.

Three years after the birth of the children, the female partner discovered that the male partner was married to someone else, ended the relationship and filed suit seeking a declaration of paternity, custody and support under the Parentage Act of 1984, as well as common law promissory estoppel and breach of oral contract. The male partner filed a motion to dismiss the complaint for failure to state a claim on which relief could be granted. The Appellate Court found for the male partner and held that the Parentage Act of 1984 requires written consent of the parent32 before a determination of parentage by the consent of the parties will be found and that the provisions of the Parentage Act preclude any common law claims for child support. The Supreme Court affirmed the written requirement provisions of the Parentage Act but reversed on the issue of whether the Parentage Act precludes common law actions for child support. Thus, the Supreme Court found that the establishment of parental rights under the Parentage Act requires written consent, but that parental responsibility can be imposed in the absence of a statutory determination of parentage. Similar results are found in the cases involving same-sex couples who use artificial insemination as a means of family building as shown from the cases that follow.

In Re C.B.L.33 is another insemination case, involving two women who were formerly involved in a long-term lesbian relationship. Nine years into their relationship, the Respondent was artificially inseminated to provide the two women with a child of their own. Petitioner was involved in all aspects of the child’s life until the relationship with the Respondent ended and the Respondent moved out of state taking the child with her. When Respondent cut off all communication between the Petitioner and the minor child, Petitioner filed suit against Respondent seeking visitation with the child pursuant to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) and alternatively, under the common law theory that she was a de facto parent or an individual in loco parentis to the child. Respondent filed a motion to dismiss for lack of standing and the motion was granted. On appeal, the 1st District held that Section 607 of the IMDMA did not provide the Petitioner with standing and that the IMDMA superseded common law. The C.B.L. court seemed uncomfortable with its conclusion, stating "this court is not unmindful of the fact that our evolving social structures have created non-traditional relationships. This court, however, has no authority to ignore the manifest intent of our General Assembly. Who shall have standing to petition for visitation with a minor is an issue of complex social significance. Such an issue demands a comprehensive legislative solution. That solution is provided, by our General Assembly, within Section 60734."

In re Adoption of A.W.35 involved a lesbian couple that had begun the adoption process. E.W. was the biological mother of three minor children she conceived through artificial insemination. E.W. and R.H. cohabitated as a lesbian couple prior to and during E.W.’s artificial inseminations and births, and at all relevant times the two women had cared for the children and acted as co-parents. In 1999, the two women jointly petitioned for R.H. to adopt the three minor children as her own with E.W.’s consent. After entry of the Interim Order, but prior to entry of Judgment, E.W. apparently withdrew her consent to the adoption and the result was the court’s dismissal of the petition. R.H. then petitioned the court for reinstatement of the adoption petition and filed a motion for visitation and other relief. Both pleas failed due to R.H.’s lack of standing.

In both of the aforementioned cases, if the non-biological parent had been a man who had impregnated his partner, he would have been able to petition for custody and visitation through the provisions of the Parentage Act of 1984, and establish his parentage with DNA testing. The same-sex parent apparently cannot do so and second-parent adoption appears to be the only avenue to secure parental rights in such cases. Although there is no express authority on the issue of whether same-sex couples can establish parentage by consent under Section 6 of the Parentage Act when one parent is already vested with parental rights, no prohibition of same can be found in the Parentage Act of 1984. The Act defines the parent-child relationship as "the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship".36

These cases are perfect examples of why it is critical that unmarried couples who wish to create families either through adoption or by artificial insemination must be counseled to put their intentions in writing and to effectuate those intentions immediately upon birth of the child either through the Parentage Act (if they are heterosexual) or the Adoption Act (if they are a same-sex couple).

In-vitro Fertilization and Embryo Donation. It is estimated that between 197,000 and 220,000 babies were born worldwide as a result of in vitro fertilization (IVF) in year 2000.37 The IVF process requires that the woman be given hormone injections to create a large number of mature eggs. The progress of the IVF cycle and egg maturation are monitored with daily blood tests and ultrasounds. When mature, the eggs are surgically removed and fertilized in the laboratory. Three to six days later, the fertilized eggs that have properly developed into pre-embryos38 are transferred into the intended mother for gestation or cryopreserved (frozen) and stored in the laboratory for later use. The IVF procedure poses significant risks to the mother and the overall success rate (defined as live birth of a child) is only 22%. IVF is extremely expensive, averaging $8,000-$15,000 per cycle. For those reasons, physicians deliberately create more pre-embryos than needed for a particular cycle and freeze the excess embryos for later use. An Embryo transfer cycle does not require the extensive hormone therapy, laboratory monitoring or surgical egg retrieval that are needed in a full IVF procedure.

Legal and ethical questions arise in the IVF process once a couple has determined that its family is complete and excess embryos remain. The options for disposition of excess embryos are to store them indefinitely, to let them thaw and die, to donate them for research purposes or to donate them anonymously for another infertile person to use. Illinois does not currently have a statute governing embryo donation so it is viewed similarly to any other type of tissue or organ donation. All fertility clinics require that the donating parties sign documents surrendering any parental rights to the embryos.

When a married couple or single woman undergoes IVF treatment, all of the intended parents are also legal parents under the Parentage Act, whether or not donor gametes or embryos were used.39 However, when an unmarried couple (either lesbian or heterosexual) use IVF to create a child, the parental rights of the parent who does not give birth must be established by consent of the parties under the Parentage Act of 1984 or in a second-parent adoption after birth.

Gestational & Traditional Surrogacy. Surrogacy is a contractual arrangement whereby a woman is impregnated with the intention of carrying a child to term to be raised by another person or couple (the "intended parent(s)"). There are two types of surrogacy arrangements, traditional and gestational. In traditional surrogacy, the surrogate’s own egg is fertilized by artificial insemination and she carries the baby for the intended parent(s). In gestational surrogacy a woman is impregnated with a child created through in vitro fertilization and the gestational surrogate makes no genetic contribution to the embryo.40

There is no statute governing traditional surrogacy arrangements in Illinois. Because the traditional surrogate is also the genetic mother of the child, she (and her husband, if she is married) must consent to the adoption of the child by the intended parents in an adoption proceeding after the birth. If the intended father’s sperm was used to inseminate the surrogate, a simple related adoption is all that should be needed.

Traditional surrogacy arrangements are not prohibited in Illinois, but there is no statute specifically governing the practice. The lack of statutory protection for the intended parents if the surrogate refuses to relinquish custody after birth makes such arrangements legally risky at best. A man (single, gay or in a married or unmarried heterosexual relationship) whose sperm was used to impregnate the traditional surrogate could establish his paternity under the Parentage Act and attempt to gain custody that way. However, his partner would have no such ability as s/he has no biological connection to the child.

The Illinois’ Gestational Surrogacy Act41, enacted in 2005, is the preeminent gestational surrogacy law in any jurisdiction. The Gestational Surrogacy Act allows the intended parents to obtain a determination of parentage before birth without any judicial or administrative proceeding. The intended parents’ rights vest immediately upon birth of the child and they are named as the parents on the child’s birth certificate. Also unique to the Illinois Gestational Surrogacy Act is the absence of any residency requirement for the intended parents. The only jurisdictional requirements are that the contract be entered into under Illinois law and that the child be born in this State.

The Gestational Surrogacy Act contains certain eligibility requirements and conditions precedent that must be followed to invoke the benefits of the Gestational Surrogacy Act. A licensed physician must certify that there is a medical need for the surrogacy. The gestational surrogate must have attained the age of twenty-one years; previously given birth to at least one child; complete medical and mental health evaluations; and, consult with an independent attorney about the surrogacy contract. The intended parent(s) must complete a mental health evaluation and consult with an independent attorney about the surrogacy contract. The child must be conceived through in vitro fertilization and contain the gamete(s) of at least one of the intended parents. And the surrogate’s egg cannot be used and same must be attested to by all parties to the contract and a licensed physician.

The gestational surrogacy contract must be in writing; include a number of express provisions regarding the duties of the parties to the contract (and the surrogate’s husband, if she is married); state that all of the parties received independent legal advice regarding their rights and duties under the contract as certified by their counsel; and, be witnessed. In order to be valid, the contract must be executed prior to the commencement of any medical procedures related to the intended conception.

If the eligibility criteria and conditions of the Gestational Surrogacy Act are met prior to the birth of the child, a parent-child relationship is created between the intended parents and the child before birth and they are vested with full parental rights upon the birth of the child. The Act further provides that if the conditions are met, the gestational surrogate will relinquish custody of the child immediately after birth and will have no parental rights to the child. The intended parents agree, accept custody and assume sole responsibility for the child upon birth and their names are placed on the child’s birth certificate as the parents.

The Gestational Surrogacy Act contains enforcement provisions that apply if either party breaches the agreement or fails to perform under the contract. However, the intended parents cannot sue for specific performance if the surrogate fails to follow through with the requirement that she become impregnated. The parties are entitled to all remedies available at law or in equity unless the surrogacy agreement itself provides otherwise.

If the gestational surrogacy contract is faulty or if it is not formed before the commencement of medical procedures to cause the conception, a parentage proceeding must be initiated after birth of the child. Because the Gestational Surrogacy Act amends certain provisions of the Parentage Act of 1984, the judge in any contested parentage proceeding involving a gestational surrogacy must decide the issues of parentage based on the intent of the parties, rather than by genetic relatedness.

Theoretically, under the Gestational Surrogacy Act, a single man or same-sex couple could be the intended parents so long as one of their gametes are used to create the child and a donor supplies the other gamete. However, proving the medical need for surrogacy might be more difficult. The Gestational Surrogacy Act does not define medical need but no other state has defined medical need in surrogacy situations in terms of a prospective father’s inability to become pregnant. The same potential pitfall holds true for single women or lesbian couples if one of them is healthy and able to bear a child.

Conclusion. All individuals enjoy fundamental rights to privacy in all matters relating to the decision to form a family and raise children. Persons enjoying 14th amendment rights to non-traditional families are becoming more common in this country and reproductive technology has advanced to the point where single persons and same-sex couples can create genetically-related children. However, Illinois parentage law has not evolved to the point where all such intended parents can secure parental rights without need of a judicial proceeding. Similarly, the number of children being raised in non-traditional households has increased exponentially in recent years. Illinois adoption law has not kept pace with social change to allow second-parents and co-parents to adopt as a matter of routine, as is the case with step-parents. Fortunately, the Illinois General Assembly is beginning to address, albeit slowly, the changing nature of Illinois families.

1 Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Zablocki v. Redhail, 434 U.S. 374 (1978).

2 750 ILCS 45/4(1)

3 750 ILCS 45/5(a)(1)

4 Family household is defined as a household comprised of at least one adult raising at least one child under the age of 18 years, according to the United States Census Bureau.

5 Unmarried partner household is defined as an unmarried adult couple who cohabitate together and are not raising any children under the age of 18 years, according to the United States Census Bureau.

6 Adopted Children and Stepchildren 2000, U.S.Census Bureau, issued October, 2003.

7 Child Welfare Information Gateway, U.S. Department of Health and Human Services, August, 2004

8 750 ILCS 50/1(B).

9 750 ILCS 50/1(K)

10 750 ILCS 50/0.01, et seq.

11 750 ILCS 50/2(a).

12 In re Marriage of R.S., 286 Ill.App.3d 1046, 677 N.E.2d 1297 (3d Dist. 1996).

13 Pleasant v. Pleasant, 256 Ill.App.3d 742, 628 N.E.2d 633 (1st Dist. 1993)

14 Petition of K.M., 274 Ill.App.3d 189, 653 N.E.2d 888 (1st Dist. 1995).

15 750 ILCS 50/13(B).

16 A child is available for adoption if the child has been surrendered to an agency and the agency has consented to the child’s adoption; if the child’s parents (or someone authorized by the court to consent to the adoption) have consented to the adoption or if there is no person from whom consent is required (either because no parent exists or because parental rights have been terminated). 750 ILCS 50/1(F).

17 750 ILCS 50/6

18 Petition of K.M., 274 Ill.App.3d 189, 653 N.E.2d 888 (1st Dist. 1995).

19 Petition of K.M., 274 Ill.App.3d 189, 653 N.E.2d 888 (1st Dist. 1995).

20 306 Ill.App.3d 1061, 715 N.E.2d 674 (1st Dist. 1999).

21 306 Ill.App.3d 1068.

22 Because the entirety of the reported cases are from the First Appellate District, our comments on the procedural differences are limited to Cook County adoptions.

23 Same Parent Adoptions, by Rosemary Mulryan, IICLE article, 2002.

24 Same Parent Adoptions, by Rosemary Mulryan, IICLE article, 2002.

25 H.B. 1826, 95th Gen. Assembly (Ill. 2007).

26 Id.

27 750 ILCS 45/4(1).

28 750 ILCS 40/2.

29 750 ILCS 40/3(a).

30 750 ILCS 40/3(b).

31 203 Ill.2d 506 (2003).

32 A Voluntary Acknowledgment of Paternity, in this case.

33 In re C.B.L., 309 Ill.App.3d 888 (1st Dist. 1999)

34 750 ILCS 5/607(b).

35 In Re Adoption of A.W., 343 Ill.App.3d 396 (1st Dist. 2003).

36 750 ILCS 45/2.

37 Adamson et al, In Vitro Fertilization World Report 2000, Fertility and Sterility, Vol. 85, p. 1607 (June 2006).

38 The Illinois Gestational Surrogacy Act defines a pre-embryo as a fertilized egg prior to 14 days development. 750 ILCS 47/10.

39 750 ILCS 45/6.

40 750 ILCS 47/10.

41 750 ILCS 47/1, et seq.

Debra J. Braselton, RN, MS, JD, is an attorney and owner of The Law Firm of Debra J. Braselton, P.C. in Oakbrook Terrace, Illinois.  She received her law degree from Loyola University and her Masters Degree in Nursing from Rush University in Chicago.  Debra’s practice is concentrated in family law with particular emphasis on matrimonial, adoption, and surrogacy law. Prior to receiving her law degree, Debra was a Certified Nurse Midwife and adjunct faculty member at Rush University Medical Center.  Debra is also an adoptive parent of two children.

Maxine Weiss Kunz, JD, is an associate attorney with The Law Firm of Debra J. Braselton, P.C. She received her law degree from Kent College of Law and Bachelor’s degrees in Psychology and Tele-communication from Indiana University.

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