What Happens with Frozen Embryos in an Illinois Divorce?

 Posted on December 26, 2024 in Family Law

Divorce can be complicated even when it is a straightforward case, but it can become even more challenging to navigate when frozen embryos are involved. Couples going through a divorce who have undergone fertility treatments have the added stress of deciding what will happen to their embryos. Are they treated as children? Might they be considered property? 

Illinois law offers some guidelines, but each case is unique, and respective outcomes can depend on specific circumstances. If you are considering divorce and confused about what might happen to your frozen embryos, speak with a skilled Arlington Heights, IL family law attorney for guidance.

What Are Frozen Embryos?

Couples facing fertility issues have the option of undergoing in-vitro fertilization (IVF). During this process, they can fertilize eggs and then freeze the resulting embryos for the future when they want to have children. If the couple does not use the frozen embryos, they can be donated for research or discarded.

How Do Illinois Courts Handle Frozen Embryos?

Since the embryos belong to the couple, they might be considered property and subject to divisions among the spouses during the asset distribution phase of a divorce. However, they can also be used to create children, so should they be handled by some type of custody arrangement?

Illinois courts treat frozen embryos as a unique type of property, but not quite the same as physical property or financial assets. Although the law does not explicitly define embryos as people, it recognizes their potential for life. That means this entire subject exists in a tricky legal gray area that makes disputes over embryos especially complicated to resolve. Couples in a divorce who have frozen embryos tend to fall into one of two categories: those with a contract about the embryos and those without. This determines how courts will handle the dispute.

When the Couple Has an Agreement

Illinois courts tend to abide by any agreements the couple made when the embryos were created. Fertility clinics often require couples to sign contracts specifying what should happen to the embryos in various scenarios, one of which is divorce. If the couple has signed such an agreement, the courts usually enforce it unless one party contests its validity based on unfairness or unenforceability.

When the Couple Does Not Have an Agreement

When there is no prior agreement, the court looks at several factors to decide what happens to the embryos, including:

• Each party’s intentions: Does one spouse want to use the embryos to have children? Does the other object?

• The right to not become a parent: Courts often prioritize the rights of the spouse who does not want to become a parent over the spouse who wants to use the embryos.

• The embryos’ intended purpose: Did the couple create the embryos so they could have children together, or were they intended for a specific individual’s use?

Courts generally try to balance these factors, but if you are anticipating a dispute about this, you should be aware that the process can be particularly emotionally challenging.

Contact an Arlington Heights, IL Family Law Attorney

When a couple is navigating their divorce, frozen embryos can add another layer of complexity. A qualified Arlington Heights, IL divorce lawyer can make sure you understand your rights and options. At A. Traub & Associates, we know that these decisions can have a lifelong impact, and we are dedicated to helping you reach an agreeable outcome. Call us at 847-749-4182 to schedule a private consultation.