Resolving Frozen Embryo Disputes in Illinois

Illinois has one of the highest reported rates of assisted reproduction in the country. Elective single-embryo transfer has become increasingly popular, where couples undergoing in vitro fertilization (IVF) will only implant one embryo at a time. As a result, couples will have “leftover” embryos that will be frozen in a process called cryopreservation. After the IVF process is complete, couples typically have four options: 1) donate the embryos, 2) thaw and destroy the embryos, 3) give the embryos to one of the potential parents, or 4) pay the facility to store the embryos indefinitely.

Illinois is home to 27 different assisted reproductive technology clinics that offer cryopreservation.

Issues arise when separating couples disagree on how to allocate their frozen embryos.

Custody or Possession?

Deciding the future of a frozen embryo can be difficult for couples due to the courts’ lack of consensus on whether an embryo is considered human tissue or a potential child.

The future of reproductive technology has become even more complicated since Dobbs v. Jackson Women’s Health Organization, where the Supreme Court overruled Roe v. Wade and allowed states to make their own restrictions on abortion. The legal status of frozen embryos has come into question since this decision.

While most abortion bans do not address frozen embryos directly, some states have already begun classifying embryos with “person status.” According to Louisiana law, viable embryos are considered “biological human beings” and in instances of dispute, courts are to consider the bests interests of the embryo. This could complicate a couple’s right to destroy their frozen embryos.

However, in Illinois a fertilized egg, embryo, or fetus does not have independent rights under the Illinois Parentage Act of 2015.

How Do Courts in Illinois Resolve Frozen Embryo Disputes?

Courts in Illinois take two approaches when dealing with disputes over frozen embryos: 1) honoring a contract between the parties and 2) if no contract has been created, weighing the parties’ relative interests in using or not using the frozen embryos.

Fertility clinics and labs often will have couples sign an Informed Consent before undergoing the IVF process. However, these documents are not uniform among facilities and may not indicate the couple’s clear agreement over frozen embryos. As a result, an Informed Consent is not automatically a binding contract.

Case law such as Szafranski v. Dunston balances the right to not parent with the right to reproductive choice in situations when the parties do not have an enforceable contract. In 2015, the Illinois Appellate Court gave Karla Dunston “sole custody and control” of three frozen embryos she created with her then-boyfriend. After undergoing cancer treatments that affected her fertility, Dunston’s only opportunity to have biological children was through the couple’s frozen embryos. The court gave possession of the embryos to Dunston because her interest in using the embryos outweighed her ex-boyfriend’s interest in not wanting the embryos to be used.

Help for Couples Using Cryopreservation

If you are planning to undergo IVF, ensure you and your partner agree on the disposition of any leftover embryos. Additionally, talk to a lawyer and have them execute a written agreement, even if you have already signed one at a fertility clinic. This will protect both parties’ interests in the event of separation.

The experienced Chicago family law lawyers at Birnbaum Gelfman Sharma & Arnoux, LLC are here to help couples handle embryo dispute cases. Contact Birnbaum Gelfman Sharma & Arnoux, LLC today and speak to a lawyer about your rights, options, and next steps.

Sources 

2021 State-Specific Assisted Reproductive Technology Surveillance | CDC

Szafranski v. Dunston, 34 N.E.3d 1132 (1st Dist. 2015)

775 ILCS 55/1-15 (c)

LSA-R.S. 9:126