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Illinois Court Struggles with Embryos and Parental Rights

Posted on in Divorce

embryos and parental rights, Illinois Family Law AttorneyOne common challenge that lawmakers face today is that they are being forced to make legal decisions about technology that changes at a much faster pace than they can change the law. Family law is no stranger to this issue. One debate arising in several states is what courts should do during a divorce with embryos that have been frozen following in vitro fertilization (IVF).

IVF is a fertility treatment that allows people to have embryos created outside of their bodies and then have them implanted. However, as a part of that treatment, doctors often create more embryos than they actually need. They then freeze those embryos in case the parents would like to use them later. This can lead to problems in a divorce, if the parents each have different ideas about what to do with the embryos. Illinois courts are currently facing such an issue in the case Szafranski v. Duncan.

Szafranski v. Dunston

Szafranski centers around a couple who chose to undergo IVF prior to the woman's treatment for cancer. The treatment would render her eggs infertile, but she would still be able to use the frozen embryos. She asked her then-boyfriend of five months to be the father. Five months after that the couple split up, and the putative father objected to the use of the embryos. The woman disagreed, knowing that the embryos were her last chance to be a mother, and the pair went to court over the issue.

Competing Rights

There are two separate issues going on in this case; one is a simple matter of contract law, and the other is one of public policy. The issue of contract law is simple: “Was the agreement to make the embryos also consent to their use regardless of what happened in the relationship?” That matter is a purely legal one that is limited to the facts of the case. The second issue of public policy has much broader implications.

Courts have the option to refuse to enforce contracts that they deem to be against public policy, meaning that there is some general reason that pushes against enforcing a class of contracts. Contracts to engage in criminal behavior or certain intimate contracts between family members often fall into these categories. The courts will now have to decide whether these sorts of contracts fall into that same exception given that siding with the man will deprive the woman of her only chance to become a mother, while siding with the woman will force someone to become a father against his will, with all the legal responsibilities that that entails. The case was recently sent to the appeals court for further guidance on the issue, and it now has the potential to end up in the Illinois Supreme Court.

The area of family law is constantly changing. If you are considering a divorce and have questions about your rights, contact a skilled McHenry County family law attorney today.

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