Update: There is new case law out of the 2nd district that now awards embryos to a parent who will take them to term.
People are getting married later and later. The scientific evidence is showing that it becomes increasingly difficult and even dangerous for a married couple to postpone conception. So, some married couples fertilize and egg via invitro fertilization and then subsequently freeze the embryo until the couple is ready to implant the embryo in the mother or a surrogate when the parties are ready to have the baby. What happens to frozen embryos in an Illinois divorce?
Is A Frozen Embryo A Child Or Property In Illinois?
Whether an embryo is a child or just a clump of cells is a big question. Even Barack Obama struggled with when asked the same question, “… whether you’re looking at it from a theological perspective or a scientific perspective, answering that question with specificity … is above my pay grade.”
The Illinois Supreme Court even bypassed the question when someone brought a wrongful death action after an accident that made an embryo either “unviable” or “dead”. The Illinois Supreme Court simply said that the language of the Wrongful Death statute didn’t fit properly for an embryo so it was not a “death.”
So, honestly, the question is unanswered from a family law perspective. Your local Illinois divorce judge is probably not going to be the one to definitively answer that question. So, it’s best to avoid words like “possession” or “custody” of the embryos. No one will want to imply anything throughout the legal process.
Who Gets The Frozen Embryos In An Illinois Divorce?
If a frozen embryo was a person, there would be some kind of custody decision made in the “best interest” of the embryo. That’s obviously a ridiculous conclusion. So, frozen embryos are probably property even though no one will, legally admit, that an embryo is property in Illinois.
So, even though frozen embryos are maybe, kind-a-sorta, probably property under Illinois law, do not expect an Illinois divorce court to divide the frozen embryos like other marital property. Instead, an Illinois divorce court will follow the formula laid out in the appellate court cases: Szafranski v. Dunston
Two unmarried people, Mr. Szafranski and Ms. Dutton, had 8 frozen embryos and they fought over them in courts for years. So much so, that the couple went to the appeals court twice.
The Illinois appeals court didn’t have any statute or previous Illinois cases to refer to, so they made up some rules for frozen embryos in Illinois.
“Following an extensive survey of Illinois law and that of other jurisdictions involving similar disputes, we held that disputes over the disposition of pre-embryos created with one party’s sperm and the other party’s ova should be settled by: (1) honoring any advance agreement entered into by the parties, and (2) weighing the parties’ relative interests in using or not using the pre-embryos in the event there is no such agreement” Szafranski v. Dunston, 34 NE 3d 1132 – Ill: Appellate Court, 1st Dist., 2nd Div. 2015
This couple wasn’t even getting divorced. They were just two people who, in a moment of passion…decided to freeze some embryos.
So, the Illinois appellate court made this two part test: 1) did the parents-to-be have a contract? and, if not, 2) the court shall weigh the parties relative interests if there is no contract.
When it comes to frozen embryos, there’s always a contract! People don’t freeze embryos by accident (the way children are usually conceived).
What Is A Contract In Regards To Frozen Embryos In Illinois?
Now that we know that contracts govern frozen embryos in Illinois, we need to find out what contract is governing the particular frozen embryos you are interested in. There are a variety of contracts that govern how two people must treat frozen embryos.
One person agrees to donate an egg. One person agrees to donate some sperm. The fertility clinic then agrees to fertilize the egg with the sperm, freeze the embryo and keep the embryo frozen on a set of written terms…that both the mother-to-be and the father-to-be sign and agree to that three-part relationship at the fertility clinic.
So, the fertility clinic is your first stop for finding the contract that governs your frozen embryos in Illinois.
The fertility clinic’s lawyers prepared the contract so that contract will outline the relationship to the fertility clinic and the two parents but the contract probably will not get into the details about how the two parents are supposed to agree to either implant or destroy the frozen embryos. The fertility clinic contracts that I’ve read usually empower the mother-to-be with all the decision-making. I guarantee that the fertility clinic’s contract does not allow the father-to-be the ability to walk into the fertility clinic and withdraw the embryos or cancel the account.
If the two parents-to-be had a separate, written contract governing when and how they will surgically implant and destroy the embryos, then you need to follow that contract.
It’s unlikely that the two parents-to-be had a separate written contract between them in regards to the frozen embryos. But, the two parents-to-be definitely had an oral contract, otherwise they would have never done gone through all the steps necessary in order to freeze those embryos.
An oral contract is still a binding agreement where there is an offer, an acceptance, and a meeting of the minds as to the terms of the agreement. Bruzas v. Richardson, 408 Ill.App.3d 98, 105, 349 Ill.Dec. 56, 945 N.E.2d 1208 (2011)
The terms of that oral offer, acceptance and meeting of the minds has to be determined by a judge who will take testimony from both parties as to their words and actions related to the oral contract and thereby try to reconstruct the contract to the best of the judge’s ability. Prignano v. Prignano, 405 Ill.App.3d 801, 810, 343 Ill.Dec. 89, 934 N.E.2d 89 (2010)
The oral contract better have had terms as to how and when you’re going to either implant or destroy the embryos. The oral contract probably didn’t have terms about how exactly the two parents-to-be-maybe will make those big decisions. So, the courts will have to guess at their “intent”.
“The principal objective in construing a contract is to ascertain and give effect to the intent of the parties.” Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill.App.3d 929, 941, 284 Ill.Dec. 868, 810 N.E.2d 658 (2004).
But the “intent” the court is looking for cannot be the wish in your heart. You cannot say, “I really hoped she’d only use one embryo but I never mentioned it” or “I basically, presumed that by age 45 we’d use all the embryos because that’s what makes sense”
“When a contract is ambiguous or silent on a disputed issue, a court may, in order to determine the intent of the parties at the time of contracting, consider the contemporaneous or subsequent acts of the parties to the contract.” Vole, Inc. v. Georgacopoulos, 181 Ill.App.3d 1012, 1021, 131 Ill.Dec. 17, 538 N.E.2d 205 (1989)
The agreement to freeze embryos was likely to to preserve the mother’s ostensibly last opportunity to have a biological child in the future, without conditions. If there were conditions you better have discussed those conditions in detail because the court will not add those conditions for you.
“[A] court cannot alter, change or modify the existing terms of a contract or add new terms or conditions to which the parties do not appear to have assented, write into the contract something which the parties have omitted” Gallagher v. Lenart, 367 Ill.App.3d 293, 301, 305 Ill.Dec. 208, 854 N.E.2d 800 (2006)
So, the mother-to-be, can likely do whatever she wants with the frozen embryos in Illinois unless the father-to-be can prove there was some kind of condition on the parties’ agreement that controls implanting or destroying the frozen embryos.
What If There Was No Clear Contract Regarding Embryos In An Illinois Divorce?
If an Illinois court cannot find a controlling agreement, the Illinois court can then apply a complicated balancing test to see if either party should be awarded the embryos…for the purpose of actually bringing the embryos to term.
“[W]here…there is no oral or written agreement, the embryo custody issue is properly assessed using the balancing approach…Under this…analysis, factors courts should consider…include, but are not limited to (1) the intended use of the party seeking to preserve the frozen embryos, with greater weight being placed on the interest of the party seeking to become a genetic parent through implantation of the embryos than that of one who desires to donate the embryos to another couple; (2) the demonstrated physical ability or inability of the party seeking to implant the embryos to have biological children through other means; (3) the parties’ original reasons for pursuing IVF, such as to preserve a spouse’s future ability to have biological children in the face of fertility-impacting medical treatment, such as chemotherapy; (4) the hardship for the person seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; and (5) either spouse’s demonstrated bad faith or attempt to use the embryos as unfair leverage in the divorce proceedings…Factors that courts should not consider include (1) limiting family size based on financial and economic distinctions, (2) the number of a party’s existing children, and (3) whether a party seeking to use the embryos could instead adopt a child or otherwise parent nonbiological children.” In re Marriage of Katsap, 2022 IL App (2d) 210706
Number 2 is clearly the most determinative factor. If a parent cannot have their own children apart from the frozen embryos, they have a strong claim under this balancing approach that they should be given this last chance to have their own biological children.
If The Embryo Is Implanted Despite The Father’s Wishes, Is He Still The Father?
Sperm donors don’t have any obligation to their children. What about a reluctant frozen embryo sperm donor? Wouldn’t the same concept apply in Illinois?
“Any individual who is an intended parent as defined by this Act is the legal parent of any resulting child.” 750 ILCS 46/703(a)
“Intended parent” means a person who enters into an assisted reproductive technology arrangement, including a gestational surrogacy arrangement, under which he or she will be the legal parent of the resulting child.” 750 ILCS 46/103(m-5)
If you’re freezing embryos…and you know it, you’re going to be an “intended parent” with all the responsibilities of a parent.
An intended parent can withdraw consent to be a parent, though.
“An intended parent who withdraws consent under this Section prior to the insemination or embryo transfer is not a parent of any resulting child.” 750 ILCS 46/704
What does “embryo transfer” mean? The statute does not say. It probably refers to the implantation of the embryo into the mother-to-be or the surrogate. There’s no case law on how this withdrawal of parentage happens exactly.
What Should You Do If You’re Going To Freeze Embryos In Illinois?
Hire a lawyer and write a very specific contract about what is going to happen to the frozen embryos. After all, no one ever freezes just one embryo, they freeze 4 to 12. Do you really want 4 to 12 kids?
You can contract with your husband or wife. The contract will govern any disputes you have with the other parent-to-be and the court will read it in a clinical, no-nonsense manner.
The father-to-be has an additional trick up his sleeve when it comes to frozen embryos: time.
Presumably, the embryos were frozen to ensure that an aging mother-to-be had viable embryos which she could carry someday to term (the sooner the better).
Any legal action the father-to-be takes will likely include an injunction preventing anyone from touching the frozen embryos during the pendency of the litigation. Litigation, can take a long time in an Illinois divorce court and the mother-to-be’s viability as a carrier to the frozen embryos will decrease exponentially as you wait on the judge’s decision.
The mother-to-be’s solution to the father-to-be “waiting out the clock” is to file a Motion For Declaratory Judgment. A Motion for Declaratory Judgment is where you ask a judge to decide on a singular issue that is in controversy like “what can we do with these frozen embryos?”
The response to a Motion For Declaratory Judgment is that “[t]he court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding.” 735 ILCS 5/2-701. Clearly, allowing the implantation of a frozen embryo is going to create more controversy, not less.
But, the judge’s declaratory judgment would answer the question “what are we going to do with these frozen embryos” and therefore terminate that controversy.
If you’re thinking about freezing embryos, if you’re thinking about divorce, or you’re thinking about freezing embryos and divorce contact my Chicago, Illinois family law firm to speak to an Illinois attorney who has handled embryo cases and (obviously) thoroughly researched the issue.
