Understanding Embryo Custody and Parentage Disputes in Illinois Divorce

For couples who use assisted reproduction technology (ART), divorce can bring unique legal challenges. Disputes over frozen embryos, parentage, and custody often require the intervention of Illinois family courts. For families facing divorce with ART-related concerns, Illinois courts apply established legal standards to resolve these issues.

At Anderson Boback & Marshall, we guide clients through ART-related disputes divorce and custody disputes, including those involving embryos, child support, and parental rights. This article explains how Illinois law addresses these matters, highlights key court precedents, and offers practical advice to safeguard your rights.

Legal Framework for ART Disputes in Illinois

Key Provisions of the Illinois Parentage Act

1. Written Consent for ART Procedures: Intended parents are recognized as the legal parents of a child if they consent in writing to ART procedures.
   (Section 703) – Illinois Parentage Act of 2015
2. Parental Rights of Donors: Sperm and egg donors relinquish any parental rights unless a legal agreement specifies otherwise.
   (Section 702)

These provisions protect both intended parents and donors by legally defining who is responsible for the child after birth.

Legal Framework for ART Disputes in Illinois

Illinois law, particularly the Illinois Parentage Act of 2015, provides the guidelines for determining parentage and resolving ART disputes. The Act defines legal parentage and clarifies the rights of intended parents and genetic contributors (donors).

Key Provisions of the Illinois Parentage Act

• Written Consent for ART Procedures:
  • Intended parents are recognized as the legal parents if they provide written consent for ART procedures.
  • (Section 703, Illinois Parentage Act of 2015)
• Parental Rights of Genetic Contributors:
  • Genetic contributors (sperm/egg donors) relinquish any parental rights unless a separate legal agreement states otherwise. (Section 702)

These provisions protect both parties by clearly establishing legal responsibility for a child born via ART.

Embryo Custody Disputes – Legal Standards in Illinois

A common issue in ART-related divorces is determining the fate of frozen embryos. Illinois courts balance each party’s reproductive rights using precedents such as the Szafranski v. Dunston case. In that case, the court established a balancing test that considers:

Szafranski v. Dunston Case

In Szafranski v. Dunston, the Illinois Appellate Court ruled that without a clear agreement between both parties, courts must weigh each person’s reproductive rights. The case established a framework where courts prioritize the protection of autonomy while still considering pre-existing agreements.  This Szafranski balancing test, considers:

• Whether both spouses agreed on embryo disposition before the dispute.
• The reproductive rights and interests of each party.
• Ethical considerations surrounding embryo storage and potential use.

Without a valid contract, courts balance each person’s right to reproductive autonomy against their prior agreements.

Common Scenarios Involving Embryo Disposition

• One spouse wishes to use the embryos to have a child while the other opposes.
• Both parties disagree on whether unused embryos should be donated or destroyed.

In re Marriage of Katsap (2022 IL App 2d 210368), the court emphasized that written agreements play a critical role in resolving such disputes. When agreements are absent, courts assess the impact on both parties’ rights to procreate or avoid parenthood.

Non-Biological Parents Parental Rights: Such as in Same Sex Marriages

Non-biological parents, particularly in same-sex marriages, face legal hurdles in securing parental rights. Under Illinois law, formal legal steps such as adoption or court-ordered parentage are often necessary to protect their rights.

Legal Options for Non-Biological Parents:

1. Second-Parent Adoption and Voluntary Acknowledgments of Parentage (VAPs): Non-biological parents can gain full legal recognition through adoption under the Illinois Adoption Act (750 ILCS 50/). The Illinois Parentage Act (750 ILCS 46/) enables non-biological parents to establish legal parentage for their children without adoption and has been updated over the years.
2. Parentage Orders: The Illinois Parentage Act allows intended parents to file for parentage orders under Section 703, ensuring they have recognized parental rights.  This applies when intended parents are not married to each other.

A key case in this area is In re Marriage of Dee J. (2018). In this case, the Illinois Appellate Court affirmed the parental rights of a non-biological parent who had actively participated in co-parenting and ART decisions. This case highlights how courts consider intent and involvement when resolving parentage disputes.

Financial Obligations and Child Support

Courts may require biological parents to pay child support for ART-conceived children, even in cases where they initially claimed to be donors.

Case Study: Child Support for ART-Conceived Triplets

One way parental responsibilities can extend to donors is explained in a case study of a matter worked on by Anderson Boback & Marshall in 2014. In it, the Illinois court mandated that the biological father of triplets conceived through ART was legally obligated to pay child support, despite his argument that he was merely a sperm donor. The court emphasized that participation in the ART process can establish legal parentage and financial responsibilities.

This case was previously discussed in a blog post analyzing Illinois parentage law: Illinois Court Requires Father to Support Assisted Reproduction Triplets.

Practical Steps for ART Disputes

If you are facing a divorce involving ART-related issues, taking early legal action is critical. Here’s how to protect your rights:

1. Review all agreements related to ART procedures, including contracts with fertility clinics and co-parents.  Be sure to retain copies of any agreements you have signed.
2. Secure legal representation to understand your responsibilities and options under Illinois law.
3. Obtain necessary court orders to protect parental rights, especially if you are a non-biological parent.

Experienced attorneys can help enforce agreements and safeguard your interests in disputes over embryos, child support, and parentage.

Conclusion

Illinois law provides clear frameworks to address embryo custody, parentage rights, and child support in ART-related disputes. Courts rely on statutes like the Illinois Parentage Act of 2015 and case precedents similar to the ones discussed in this article to guide their decisions. For individuals facing these challenges, experienced legal counsel is essential to ensure that agreements are enforced and parental rights are protected.

To learn more about how Anderson Boback & Marshall can assist you with ART-related disputes, contact Jessica Sindel or another attorney at the firm to schedule a consultation.

FAQs Related to ART and Parentage Disputes in Illinois Divorce

What happens to frozen embryos during a divorce in Illinois?

Illinois courts prioritize written agreements between the parties, such as those with fertility clinics. If no agreement exists, courts apply the Szafranski balancing test to evaluate each spouse’s reproductive rights. This test balances one spouse’s right to procreate against the other’s right to avoid unwanted parenthood and considers factors like emotional and ethical implications of the embryos’ potential use or disposal.

Additionally, to prevent disputes, couples are advised to establish legally enforceable agreements before undergoing ART procedures.

What if my ex-partner wishes to use our embryos without my consent, Can I stop them?

If you have expressed your objection in writing, courts generally uphold that decision. Without a clear written directive, however, the court will use the Szafranski balancing test to assess both parties’ reproductive rights and intentions.

Can a genetic contributor (donor) claim custody rights?

A genetic contributor may only claim custody if there is evidence of a parental role – such as written agreements or financial support. If the contributor’s involvement was limited solely to donation, courts typically do not grant custody rights.