What Happens to Frozen Embryos in the Event of a Divorce?

As the technology has grown more sophisticated, more couples have turned to in vitro fertilization (IVF) and surrogacy arrangements to help them have children. Along with the many personal and practical difficulties that can accompany these assisted reproductive technologies, there are—for better or worse—sometimes legal challenges as well.

For example, suppose that a couple is struggling to conceive and decides to combine the husband’s sperm with a donated ovum and then cryopreserve the resulting embryos. However, shortly after the embryos have been frozen, their marriage sours and they decide to get divorced. Can the former husband or wife then use the cryopreserved embryos in an effort to conceive? Can he or she do so without his or her spouse’s consent? These are, no doubt, difficult issues for anyone to face, especially in the midst of a divorce.

IVF in Illinois

Under Illinois law, questions like these are typically treated as a matter of contract. When a couple undergoes an IVF procedure, the reproductive center usually requires them to enter into an agreement stating that the fertilized embryos will not be released to either spouse without the consent of both spouses.

For example, the Fertility Centers of Illinois, one of the leading providers of assisted reproductive treatments in the state, requires patients to enter into legal agreements before undergoing any major fertility treatment. In a felicitous case where all goes according to plan, these agreements are, of course, unnecessary. However, in the event of divorce, court proceedings may be required to enforce them.

In a decision issued in 2013 in the case of Szafranski v. Dunston, 993 N.E.2d 502 (Ill. App. Ct. 2013), the Appellate Court of Illinois considered the question whether such contracts were enforceable. In that case, a couple had cryopreserved several embryos through an IVF procedure. The couple then divorced, and the former wife sued for the right to use the embryos. The court noted that several states—including New York, Tennessee, Texas, Oregon, and Washington—had concluded that the contracts should be enforced according to their terms.

The court also stated that several other states—such as Massachusetts, New Jersey, Iowa, and Pennsylvania—were more skeptical of these agreements, arguing that the right to be a parent has constitutional importance and that people can, quite reasonably, change their minds about what to do with the embryos after a divorce.

However, the Appellate Court of Illinois ultimately concluded that these kinds of contracts should be enforced. “We believe,” wrote Justice Quinn on behalf of a unanimous court, “that honoring parties’ agreements properly allows them...to make their own reproductive choices while also providing a measure of certainty necessary to proper family planning.” Szafranski, 993 N.E.2d at 515.

Speak with an Illinois Family Law Attorney

If you have used IVF or have a surrogacy arrangement of any kind, and find yourself contemplating (or already undergoing) a divorce, it is vitally important to consider what will happen to the embryos or other reproductive matter you have preserved. The process can be complicated, and you should not attempt to navigate it alone.

Contact the experienced divorce attorneys at Martoccio & Martoccio who have the expertise needed to help you navigate the developing legal landscape surrounding assisted reproductive technologies in the event of divorce. These issues can be sensitive, personal, and emotional, but you can rely on our legal expertise to guide you through the process.

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