Does Family Court Have Jurisdiction Over an Embryo Dispute Between Unmarried Partners?
If an unmarried couple creates frozen embryos through IVF and later breaks up, a tough legal question can come up about who controls those embryos and whether one person can use them without the other’s consent. Illinois law sees this as different from a typical parenting time or child custody dispute, since there is not yet a child involved. Still, an Illinois circuit court can decide cases about frozen embryos, assisted reproduction, contract rights, and parentage questions. The couple does not have to be married for the court to get involved. In fact, one of Illinois’s key embryo-disposition cases was between unmarried former partners and set a framework that is still important today.
For clients in Illinois, I review fertility clinic documents, agreements between the parties, communications before the embryos were created, the circumstances of IVF treatment, and each person’s intent. Disagreements about embryos can impact future parentage, financial responsibilities, reproductive rights, and later questions about parenting time. Since these cases involve family law, contract law, and assisted-reproduction law, the specific facts are very important.
Illinois Courts Can Hear Embryo Disputes Between Unmarried Partners
Illinois does not require parties to be married before the circuit court can hear a dispute concerning embryos. The leading Illinois decision is Szafranski v. Dunston, 2013 IL App (1st) 122975, followed by Szafranski v. Dunston, 2015 IL App (1st) 122975-B. The parties were unmarried, had created cryopreserved pre-embryos using their own sperm and eggs, and later disagreed over whether the woman could use them after their relationship ended. The Illinois Appellate Court held that courts should first determine whether the parties entered an enforceable agreement governing disposition of the embryos. If no controlling agreement exists, the court may weigh the parties’ competing interests.
That distinction is important. An unmarried person’s inability to file a divorce case does not mean there is no judicial remedy. Illinois circuit courts possess broad jurisdiction over civil disputes, and the Illinois Parentage Act expressly provides that circuit courts have jurisdiction over actions brought under that statute. Section 603 of the Illinois Parentage Act, 750 ILCS 46/603, also allows Parentage Act provisions to apply when parentage becomes an issue in another civil proceeding.
Therefore, when someone asks whether “family court” can decide the matter, the practical answer can be yes, although the legal theory may differ significantly from a traditional divorce or child-custody case.
The Court Will Closely Examine Any Agreement About The Embryos
The first thing I look at is what the parties agreed to before or during the IVF process. Fertility clinics usually have patients sign consent forms about storage, transfer, destruction, donation, separation, death, or other situations. These documents can be very important evidence.
In Szafranski, the Illinois Appellate Court adopted an approach that gives priority to agreements made by the parties concerning embryo disposition. The court ultimately affirmed an award allowing the woman to control and use the embryos after finding evidence of an oral agreement permitting that use. The court also concluded, alternatively, that her interests prevailed because the embryos represented her last opportunity to have a biological child using her own eggs.
This means I would not limit my analysis to a single clinic form. Emails, text messages, informed-consent documents, discussions surrounding fertility treatment, written agreements, and testimony concerning what each person understood may all become relevant. A person who believed the embryos could only be used with mutual consent may present a very different case from someone who expressly agreed that the other partner could use them independently.
Embryo Disposition Is Not The Same As Child Custody Or Visitation
Illinois law now generally uses the terms “allocation of parental responsibilities” and “parenting time” rather than custody and visitation when addressing parents and their children. Under 750 ILCS 5/600, parental responsibilities include parenting time and significant decision-making responsibilities concerning a child. Parenting time means the period during which a parent performs caretaking functions and exercises ordinary decision-making responsibilities for that child.
A frozen embryo dispute generally occurs before those rules apply because there is not yet a child whose parenting schedule can be established. Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/602.7, requires courts to allocate parenting time according to the best interests of the child. Those statutory factors concern an existing child and the relationship between that child and the parents.
So, when a court decides who can control or use stored embryos, it is not just giving someone visitation with an embryo. The court is deciding rights about the embryos and possible future reproduction. If a child is later born, questions about parentage and parental responsibilities become separate legal issues.
Illinois Parentage Law Can Become Critical After Assisted Reproduction
Illinois has specific statutory provisions addressing children conceived through assisted reproduction. Under 750 ILCS 46/703, a person who consents to assisted reproduction with the intent to become a parent can be legally recognized as a parent of the resulting child. The statute addresses written consent and agreements entered into before conception, while also allowing courts in certain circumstances to determine parentage based upon later conduct.
Illinois law also expressly states that children have equal rights without regard to their parents’ marital status or whether conception occurred through assisted reproduction. Under 750 ILCS 46/102, the parent-child relationship and corresponding support obligations apply without regard to the legal relationship between the parents.
The fact that two people never married therefore does not automatically eliminate future parentage questions. Depending upon the agreements and circumstances, a person who participated in assisted reproduction may eventually face issues concerning legal parentage, child support, decision-making authority, and parenting time.
Parenting Time Becomes A Separate Issue If A Child Is Born
Once legal parentage exists, and there is a child, Illinois parenting-time law can become directly applicable. Under 750 ILCS 5/602.7, Illinois courts allocate parenting time according to the child’s best interests. The court considers matters such as each parent’s wishes, the child’s needs, the child’s relationship with each parent, the parents’ prior caretaking roles, adjustment to home and community, and other circumstances affecting the child’s welfare.
This produces an important distinction in embryo cases. The court’s decision concerning whether an embryo may be used does not necessarily determine every future parental issue. If a child is later born, the court may need to address parentage first and then determine parental responsibilities, parenting time, support, and significant decision-making under the statutes applicable to the resulting child.
The Illinois Parentage Act reinforces this distinction by providing jurisdiction for parentage actions and by addressing proceedings involving assisted reproduction. The Act provides that Article 7 parentage proceedings involving assisted reproduction may be commenced in any Illinois county.
Courts May Balance Competing Reproductive Interests When No Agreement Controls
When no enforceable agreement resolves the dispute, Szafranski permits Illinois courts to consider the competing interests of the parties. One person may argue that using the embryos represents the only realistic opportunity to have a genetically related child. The other may argue that embryo use would impose parenthood or biological parenthood that the person no longer wants.
These interests can be extraordinarily significant. In Szafranski, the appellate court explained that advance agreements should ordinarily control but recognized a balancing process when there is no controlling agreement. The later decision affirmed the judgment for the woman both on contractual grounds and, alternatively, after weighing her interest in having a biological child against her former partner’s competing interest.
That does not mean one interest automatically defeats the other. I would develop the factual record carefully because the medical circumstances, alternative reproductive options, prior agreements, intentions when the embryos were created, and the consequences to each party can all matter.
Unmarried Partners Should Address These Rights Before IVF Whenever Possible
Embryo disputes demonstrate why assisted-reproduction agreements deserve careful attention before treatment begins. A clinic consent form may address medical authorization without resolving every legal consequence between the partners. People undergoing IVF should understand what their documents say about separation, death, storage, implantation, donation, destruction, and the withdrawal of consent.
Illinois laws about assisted reproduction have changed over time. Today, Illinois law clearly recognizes IVF and embryo transfer as assisted reproduction under the Parentage Act. The Gestational Surrogacy Act also defines a pre-embryo and sets rules for gestational-surrogacy arrangements.
For unmarried partners in particular, careful documentation can reduce uncertainty because there will be no divorce judgment available to resolve rights simply because the romantic relationship ends.
Frozen Embryo Custody Frequently Asked Questions
Can An Unmarried Partner Ask An Illinois Court To Decide Who Controls Frozen Embryos?
Yes. Marriage is not necessarily required for an Illinois court to resolve an embryo-disposition dispute. Szafranski v. Dunston itself involved unmarried former partners. Illinois courts may examine agreements governing the embryos and, when no controlling agreement resolves the issue, may evaluate the parties’ competing interests.
The proper type of lawsuit and legal claims depend upon the facts. Because the parties are unmarried, the dispute may not arise through a dissolution-of-marriage proceeding. That does not leave the parties without access to the Illinois circuit courts.
Is A Frozen Embryo Legally Treated The Same As A Child For Custody And Visitation Purposes?
Generally, an embryo-disposition dispute is not analyzed as an ordinary parenting-time proceeding. Illinois parenting-time statutes address responsibilities concerning a child. Section 750 ILCS 5/600 defines parenting time through caretaking functions and decision-making concerning a child, while Section 602.7 requires parenting-time decisions to be based upon that child’s best interests.
The embryo dispute occurs at an earlier stage. The court may first have to determine whether an embryo may be used and which party has authority over its disposition. Parentage and parenting-time questions may arise later if a child is born.
Will The Fertility Clinic Agreement Decide The Case?
It may have substantial importance, but the answer depends upon the agreement and surrounding circumstances. Under Szafranski, Illinois courts first look for an agreement between the parties governing disposition of their embryos. That agreement could potentially arise from clinic documents or other evidence demonstrating what the parties agreed would happen.
I would review every relevant document instead of assuming that the clinic’s standard form necessarily resolves the entire dispute. Emails, messages, medical-consent paperwork, separate contracts, and statements made before the embryos were created may all become significant.
Can Someone Be Considered A Parent After Consenting To Assisted Reproduction?
Potentially, yes. Under 750 ILCS 46/703, an individual who consents to assisted reproduction with the intent to become a parent of the resulting child can acquire legal parentage. The statute recognizes specified forms of documented consent and certain agreements concerning intended parenthood.
This is one reason embryo disputes can have consequences beyond the immediate question of embryo control. The parties should consider not only whether an embryo may be transferred but also the possible parentage and support consequences if treatment results in the birth of a child.
Speak With The Law Office Of Fedor Kozlov About An Illinois Embryo Or Family Law Dispute
A disagreement over frozen embryos can involve reproductive rights, contracts, assisted-reproduction law, parentage, and potentially future parenting responsibilities. I understand that either person in the dispute may have significant rights at stake, and I represent clients on either side of contested Illinois family-law matters. I also handle divorce proceedings, child-custody and parental-responsibility disputes, parenting-time and visitation matters, paternity and parentage cases, and other family-law proceedings.
If you are involved in an embryo dispute with a former spouse or unmarried partner, or you are concerned about how an assisted-reproduction agreement could affect your parental rights, contact the Law Office of Fedor Kozlov to discuss your circumstances. Contact our Schaumburg embryo disputes attorney at the Law Office of Fedor Kozlov by calling (847) 241-1299 to receive a consultation.
