Custody of Pre-embryos Awarded to Woman Despite Sperm Donor’s Objection

The Illinois Appellate Court recently awarded custody of a woman’s frozen pre-embryos to the woman whose eggs were fertilized to create them.  The father of the pre-embryos objected because he did not want to be a father.

The case involved a woman who had been diagnosed with lymphoma and her chemotherapy treatments were likely to cause her to lose her fertility.  Her then-boyfriend agreed to donate sperm so she could create pre-embryos with her eggs.  The couple planned to implant the pre-embryos in the future. The parties made an oral agreement that the woman would have full control over the disposition of the embryos.  The parties then met with attorneys and drafted a co-parenting agreement that was never signed stating that the woman would take full responsibility of the child regardless of any change of circumstances between the parties.

The court analyzed whether there was a contract and what the scope of the contract was.  Although there was no valid co-parenting agreement signed and entered by a judge, the court found that the parties did enter into a valid oral agreement that was corroborated by extrinsic evidence–the co-parenting agreement.  The court upheld the oral agreement and gave the woman full custody and control of the frozen pre-embryos.  The man is likely to appeal the ruling.

Although this case touches more on contract law than domestic law, it details an important concept of in-vitro fertilization and its effects on custody agreements.  We are seeing more and more cases of embryos and the rights of the potential mothers and fathers.  Both parties here have their right–the woman had her right to become a mother the only way she knew how, and the man had his right to not become a parent.  In the end, the court held that the woman’s right outweighed the man’s right in this case.  The court did caution that each case is different and would entail its own balancing test.

This case is also interesting in the way that it enforced an unsigned out-of-court co-parenting agreement.  In most cases, such agreements are unenforceable to determine issues of custody and child support.  It will be interesting to see what the federal courts of appeal will decide.

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