The use of Assisted Reproductive Technology (“ART”) has grown exponentially over the years and has provided many individuals and couples with the opportunity to build and create a family in a way that feels right for their unique circumstances. ART refers to the treatments and procedures that may help individuals and couples with difficulties or inabilities to conceive children. Such treatments include, but are not limited to, in vitro fertilization (“IVF”) and frozen embryo transfer. Through in vitro fertilization and frozen embryo transfer(s), individuals and couples can create embryos to either be immediately implanted in hopes of achieving a pregnancy or to be frozen, stored, and implanted in the future.

As the use of ART has become more commonplace, the issue of how to allocate frozen embryos in a divorce has also emerged. When couples do not agree on how to allocate frozen embryos, the court has the power to make the final determination as to how and to whom the embryos may be awarded.
The laws surrounding the allocation of frozen embryos vary state by state. In Illinois, the courts use the prevailing two-prong test as established in the Illinois Supreme Court case Szfranski v. Dunston, 2013 IL App (1st) 122975 and Szfranski v. Dunston, 215 IL App (1st) 122975-B. First, the court will determine whether or not a contract, or advance agreement, exists between the parties dictating how the embryos are to be allocated in the event of a divorce or separation. Courts may look to forms signed by the parties at the medical center where the embryos were created or frozen, to prenuptial or postnuptial agreements that may have terms specifying the allocation of embryos, or any other written or oral evidence that a contract was created between the parties. If the court establishes that a contract exists, the court will award the frozen embryos based on the terms of the existing contract.

If no oral or written advance agreement exists, the court will apply a balancing test to weigh the parties’ relative interests with respect to the frozen embryos. In the Szfranski case, the court weighed the interest of one party’s inability to have biological children without the frozen embryos against the other party’s desire to not procreate with an individual he no longer wanted to be in a relationship with. The court found in favor of the party who was physically unable to have biological children and the embryos were the party’s only opportunity to have biological children. Recently, an Illinois court expanded the factors that an Illinois court may consider when weighing each party’s interests to include: (1) the intended use of the party seeking to preserve the frozen embryos (with greater weight placed on the party seeking to become a genetic parent versus the party desiring to donate or not use the embryos), (2) the 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 in vitro fertilization and frozen embryo transfer(s); (4) the hardship for the person seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; and (5) either party’s demonstrated bad faith or attempt to use the embryos as unfair leverage in the divorce proceedings. Katsap v. Katsap, 2022 IL App (2d) 210706 at ¶ 117.

How embryos are allocated in the event of a separation or divorce is a highly individual, personal and emotional decision. It is always in the best interests of both parties to work together to reach an agreement as no one wants a stranger to make the final decision in their lives on something as important as to the use of their genetic material or their ability to potentially have a biological child. However, in the event parties are unable to agree and the issue comes before a judge, it is important to retain an attorney that understands the ever-changing and evolving field of family law and recognizes the emotional, lasting impact a final determination can have on a party and their family.

Molly M. Carmody, Associate
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