Can I Use Fertilized Embryos After We Get Divorced?

 Posted on June 21,2024 in Divorce

Infertility is a challenge that many people face, and the rate of couples who deal with infertility is on the rise. Because of this, we can expect to see more and more legal cases, such as divorce, involving questions around fertility. Just a few weeks ago, for example, the Alabama Supreme Court ruled that frozen embryos are legally considered “people,” making questions about what happens to fertilized embryos in a divorce in that state much more complicated.

Although the chances of such a law being passed in Illinois are effectively zero, Illinois couples who have frozen embryos and are considering divorce are still left with difficult questions about how these embryos - which are a combination of both spouses’ DNA and could potentially lead to the creation of shared children, even after a divorce - should be handled. If you are in this situation, seek the help of a compassionate, experienced family law attorney who will handle your case with sensitivity and respect.

Are Fertilized Embryos Personal Property in an Illinois Divorce? 

When a couple shares a child, and that couple gets divorced, Illinois law has clear answers for how that situation should be handled. Always keeping the best interests of the child in mind, parents and Illinois judges routinely make decisions about parental responsibilities, parenting time, and child support. There are virtually no situations that Illinois courts have not seen, making even the most complicated custody situations solvable using state law or case precedent.

In the case of fertilized, frozen embryos, however, there is very little case law that offers judges guidance. A frozen embryo is not a live human child; nevertheless, few people would agree that an embryo is merely another form of marital property, like a house or a fine leather sofa. Instead, Illinois courts have tried to defer, whenever possible, to the contract a couple creates when they freeze their embryos. In the absence of such a contract, the courts look at the reasons the embryos were created and try to honor the “parties’ relative interests in using or not using the pre-embryos.”

Frozen Embryos, Fertility Agreements, and Divorce

Fertility treatments are very expensive, and people hoping to have more children may understandably be reluctant about destroying fertilized embryos after a divorce. This issue is often further complicated by personal and religious feelings about how to handle this sensitive subject.

Couples are, therefore, required to sign a contract when they freeze their embryos. This is done, in part, because the cryopreservation service is a business and the relationship between the business and hopeful parents needs to be clearly defined. But this is also done because questions about what to do with unused embryos easily become very tricky and these questions are better answered when a couple is planning ahead and thinking clearly.

The bottom line is: If you are getting divorced and you have frozen embryos with your spouse, how the embryos are treated will almost certainly depend on the contract you signed when the embryos were created. Absent such a contract, the courts will look at any agreement you had with your spouse, including an oral agreement. Each partner’s intent at the time of the embryo’s creation matters - which is why it is so important to have an experienced family lawyer arguing your position.

Getting Divorced? Call Our Naperville, IL Family Lawyer to Protect Your Rights

Divorce is never easy, but when highly sensitive questions about IVF and fertilized embryos are involved, it can feel impossible to come to an agreement. Whether you are hoping to keep fertilized embryos or prevent your spouse from using your genetic material in the future, you need a DuPage County, IL divorce attorney’s help. At Law Office of Ronald L. Hendrix, P.C., we have helped spouses with formidable disagreements get divorced. Attorney Hendrix is a court-appointed mediator, and he has the skills to help resolve conflict and move complex divorce cases toward a resolution. Call us at 630-355-7776 now.