How Are Embryo Custody Disputes Handled in Illinois?

 Posted on April 04, 2025 in Family Law

Virtually every divorce comes with its own set of challenges. A divorcing couple who has frozen embryos, known as assisted reproduction technology (ART), may have even bigger challenges. The 2015 Illinois Parentage Act provides guidelines for resolving ART disputes, defining legal parentage, and clarifying the rights of genetic contributors and the intended parents.

However, for a divorcing couple, the questions may include whether the frozen embryos are treated as children or whether they are considered "property." While Illinois law does offer certain guidelines, each case is unique and will depend on the specific circumstances. If you and your spouse are divorcing and you are unsure how frozen embryos will be addressed during the divorce, speak to a knowledgeable Wheaton, IL family law attorney for guidance.

Legal Standards in Illinois for Embryo Custody Disputes

The Illinois Appellate Court ruled in Szafranski v. Dunston that, barring a clear agreement between both parties, the court would weigh the reproductive rights of each person. Perhaps one spouse wishes to use the frozen embryos to later have a child, while the other vehemently opposes those wishes.

The spouses may disagree on whether the frozen embryos should be destroyed, donated, or kept. Illinois treats frozen embryos as a unique type of property, but not the same as physical property or financial assets. While embryos are not specifically defined as people, the potential for life is recognized.

If the couple has a written Agreement, Illinois Courts will usually honor it. Illinois courts are very likely to let any Agreement the couple made at the time the embryos were created stand. Most fertility clinics require signed contracts from both spouses that specify what will happen to the embryos under different scenarios, including divorce. If the spouses have signed an Agreement like this, the courts will generally enforce it unless the validity of the Agreement is in question.

What Happens to Frozen Embryos If There Is No Prior Agreement?

Absent a prior Agreement, the courts will consider the following factors when determining what will happen to frozen embryos:

• The intentions of each spouse are a big part of this decision. One spouse may want to use the embryos later on to have children, while the other disagrees.
• Whether both parents contributed to the biological makeup of the frozen embryos (egg and sperm), whether the mother’s egg was fertilized with donor sperm, or whether the egg and sperm are not biologically connected to either parent could be a factor, although this is not always the case.
• Courts will consider the right not to become a parent, often prioritizing the rights of the spouse who does not want to become a parent over the spouse who wants to use the embryos.  
• The court will consider the original intended purpose of the frozen embryos, i.e., did the couple freeze embryos so they could have a child together?
• Consideration will also be given to the physical ability or inability of the spouse who wants "custody" of the embryos to have biological children through other means.

Is the Father Financially Responsible if the Mother Uses the Embryos After the Divorce?

A genetic contributor can only claim custody rights if there is evidence of a parental role. Absent evidence of a parental role and a written agreement for financial support, the courts generally will not grant custody rights or require financial support from a genetic donor. In the end, each court will attempt to carefully weigh all the facts surrounding the issue before making a decision regarding frozen embryos during a divorce.

Contact a DuPage County, IL Divorce Lawyer

Issues like "custody" of frozen embryos can make a divorce much more complex. Having a Wheaton, IL divorce attorney from Mirabella, Kincaid, Frederick & Mirabella, LLC can help ensure the outcome is fair for all those involved. When you choose MKFM Law, you have the choice of visiting our offices in Kane County, DuPage County, or DeKalb County. Schedule your initial attorney meeting by calling 630-665-7300.