What Happens If the Husband and Wife Signed Different IVF Consent Forms?
IVF treatment usually involves a substantial amount of paperwork, and married couples may sign consent forms at different stages of treatment. Problems can arise when a husband and wife sign different versions of those forms, select inconsistent options, sign documents on different dates, or express different instructions about what should happen to frozen embryos if they divorce. What may have seemed like routine medical paperwork at the fertility clinic can become a major family law issue when the marriage ends.
Illinois law now specifically addresses assisted reproduction, withdrawal of consent, and the disposition of cryopreserved fertilized ova, making the wording and timing of IVF documents particularly important. When I review one of these disputes, I do not assume that every form has equal legal effect. I examine who signed each document, what each form actually says, when it was signed, whether both spouses agreed to the same terms, and whether a later divorce agreement affects the instructions given to the fertility center.
Different IVF Forms Can Create A Serious Legal Conflict
A fertility clinic may provide several types of documents during IVF treatment. Some forms address medical risks, while others address embryo storage, future use, destruction, donation, divorce, death, or withdrawal of consent. A husband and wife may sign forms separately, particularly when treatment occurs over several appointments or when the clinic updates its paperwork.
A dispute can become complicated if the husband selects destruction upon divorce while the wife selects continued storage, or if one spouse authorizes future use while the other requires mutual consent. The same problem can occur when both spouses sign one agreement together, and one spouse later signs another form with different instructions. In those situations, the legal question is not simply which document exists. The court may have to determine which document actually represents the parties’ controlling consent under Illinois law.
Illinois Law Gives Special Importance To The Most Recent IVF Consent
Illinois provides unusually specific guidance for disagreements concerning frozen fertilized ova. Under 750 ILCS 46/704.5, if intended parents no longer agree about the medical use of cryopreserved fertilized ova, the terms of the most recent informed consent of the intended parent or parents executed at the fertility center, or a qualifying marital settlement agreement entered under a divorce, legal separation, or civil union dissolution judgment, governs disposition.
That statutory language makes dates and signatures extremely important. If spouses signed different forms, I would want to determine which document qualifies as the most recent informed consent and whether it reflects an agreement by both intended parents. A later document is not necessarily controlling merely because it has a newer date if only one spouse signed it and the issue required mutual consent. The exact language, the circumstances surrounding execution, and the fertility center’s procedures can all become relevant.
This is one reason couples should preserve complete copies of fertility clinic paperwork. A single page viewed in isolation may not accurately show the complete agreement.
A Form Signed By Only One Spouse May Not Resolve The Dispute
Suppose the wife signed a clinic form stating that embryos should be transferred to her after divorce, while the husband separately signed a form stating that they should be destroyed. The existence of two signatures does not necessarily create two equally enforceable instructions.
I would first determine whether the clinic intended the forms to operate independently or whether both spouses were required to agree on the disposition option. If the fertility center required joint consent, conflicting individual elections may indicate that no mutual disposition agreement was reached on that issue. The court may then need to interpret the documents along with other evidence showing the parties’ intent.
Illinois courts have previously recognized the importance of agreements between people who created embryos through IVF. In Szafranski v. Dunston, an Illinois appellate court examined several agreements and communications when deciding who had authority over cryopreserved pre-embryos. Although that case preceded the current statutory language in 750 ILCS 46/704.5 and involved an unmarried couple, it illustrates why courts may examine the substance of the parties’ agreements rather than simply relying on a single clinic form.
Later Agreements Can Become Particularly Important
Couples sometimes sign an IVF consent form when treatment begins and then sign another document months or years later. The second document may amend the original instructions or address circumstances the first agreement did not cover.
Under current Illinois law, the most recent qualifying informed consent can be significant when the intended parents disagree about embryo use. For that reason, determining the sequence of documents is critical. I would look at the original IVF agreement, embryo storage agreements, later consent forms, amendments, clinic correspondence, and any other documents showing whether the couple changed their prior instructions.
A later document may modify an earlier agreement, but whether it actually does so depends on its language and whether the necessary parties agreed to the modification. A new form that addresses only storage fees, for example, may not necessarily modify an earlier agreement concerning disposition after divorce.
A Marital Settlement Agreement May Control Embryo Disposition
The issue becomes even more important during divorce negotiations. Section 704.5 expressly recognizes that a marital settlement agreement entered under a judgment of dissolution of marriage or legal separation can govern disposition of cryopreserved fertilized ova.
This gives divorcing spouses an opportunity to address embryo disposition directly instead of leaving the issue unresolved. A settlement agreement can state whether embryos will remain stored, be destroyed, be donated, or be used as permitted by law. The agreement should be precise because vague language can simply create another dispute later.
If the couple’s fertility clinic paperwork contains conflicting instructions, addressing the matter clearly in the final divorce settlement can help establish what is supposed to happen. I would also want the settlement language to be consistent with the current requirements of Illinois parentage law and the fertility center’s administrative procedures.
One Spouse May Withdraw Consent Before Embryo Transfer
Illinois law also gives intended parents an important right to withdraw consent. Under 750 ILCS 46/704, an intended parent may withdraw consent to assisted reproduction before an insemination or embryo transfer that results in pregnancy. The withdrawal must be made in writing or through a legal pleading with notice to the other participants and the clinic or health care providers facilitating the procedure.
The statute further provides that an intended parent who properly withdraws consent before the insemination or embryo transfer is not considered a parent of the resulting child under that provision. That can become extremely important when a marriage deteriorates during IVF treatment.
Section 704.5 separately allows an intended parent to withdraw consent to the use of that person’s gametes before insemination or in vitro fertilization. The timing therefore matters. The rights and consequences may be different depending upon whether the dispute occurs before fertilization, after embryos have been created, or immediately before an embryo transfer.
Parentage And Embryo Ownership Are Different Legal Questions
An argument over frozen embryos should not be confused with a dispute over an existing child’s parenting time. Illinois parentage law addresses who may become a legal parent through assisted reproduction, while Illinois divorce law addresses parenting responsibilities once a child exists.
Under 750 ILCS 46/703, an individual who consents to assisted reproduction with the intent to become a parent may be legally recognized as a parent of a child conceived through that process. The statute contains requirements concerning how consent can be established, including signed records and agreements showing intent to parent.
That means IVF consent forms can potentially become important not only when deciding what happens to embryos, but also when determining intended parentage. If the spouses signed inconsistent documents, I would carefully separate the embryo disposition question from the parentage question because the applicable legal standards may differ.
Parenting Time Is Determined After A Child Is Born
If IVF results in the birth of a child and the parents later divorce, the dispute changes significantly. Frozen embryo agreements generally do not determine future parenting time for a child who has already been born.
Under 750 ILCS 5/602.7, Illinois courts allocate parenting time according to the child’s best interests. Courts consider factors including each parent’s prior caretaking role, the child’s relationship with the parents, the child’s adjustment to home and community, the parents’ ability to cooperate, and the child’s needs.
Significant decision-making responsibilities are addressed under 750 ILCS 5/602.5. Those responsibilities can include decisions concerning education, health care, religion, and extracurricular activities. A fertility clinic document signed years earlier does not replace the court’s obligation to determine what arrangement serves the child’s best interests.
Do Not Assume The Fertility Clinic Will Decide Who Is Right
Fertility centers typically rely on their consent documents and applicable court orders, but the clinic is not a substitute for a family law court when the spouses disagree about their legal rights. A clinic may place embryos on hold when it receives conflicting instructions rather than deciding which spouse has the stronger claim.
If a divorce is pending, the dispute may need to be addressed through the divorce proceedings or through appropriate additional legal relief. I would want to preserve the embryos while the dispute is being resolved so that neither spouse can create a permanent outcome before the legal issues have been decided.
Couples facing this situation should preserve every version of their IVF paperwork, including signed forms, electronic consent records, emails, storage agreements, amendments, and communications with fertility clinic staff. Differences that appear minor can become highly significant when the court tries to determine what each spouse agreed to.
Frequently Asked Questions About Conflicting IVF Consent Forms In Illinois
What Happens If My Spouse And I Selected Different Embryo Disposition Options?
The answer depends on what documents were signed, when they were signed, and whether the fertility center required both spouses to agree to a single option. Illinois law provides under 750 ILCS 46/704.5 that when intended parents disagree about the medical use of cryopreserved fertilized ova, the most recent informed consent executed at the fertility center or a qualifying marital settlement agreement governs disposition.
If the spouses signed conflicting individual forms, however, determining what constitutes the controlling informed consent may require closer review. A court may need to determine whether either document reflects mutual agreement or whether the parties never actually reached a common disposition decision.
Does The Most Recently Signed IVF Form Automatically Control?
Not necessarily. Section 704.5 gives importance to the most recent informed consent, but the document must still qualify as the relevant informed consent under the circumstances. A form signed later by only one spouse may not necessarily override an earlier joint agreement if the subject required agreement by both intended parents.
I would review what the later document changed, who signed it, whether the clinic accepted it as an amendment, and whether the other spouse agreed to its terms. The precise language can make a major difference.
Can My Spouse Change Our IVF Agreement Without Telling Me?
Whether a spouse can change a particular instruction depends on what is being changed and when. Some individual consents may be withdrawn under Illinois law, while other decisions concerning already-created embryos may depend on the agreement between both intended parents.
Under 750 ILCS 46/704, an intended parent may withdraw consent to assisted reproduction before an insemination or embryo transfer that results in pregnancy by providing the required written notice. That individual right is different from attempting to rewrite an existing joint embryo disposition agreement without the other spouse’s consent.
Contact The Law Office Of Fedor Kozlov About An IVF And Divorce Dispute
Different IVF consent forms can create serious questions about frozen embryos, reproductive consent, parentage, and the terms of a divorce settlement. These disputes are particularly sensitive because the decision may permanently affect whether embryos can be used, preserved, donated, or otherwise disposed of. Illinois law now provides specific rules concerning assisted reproduction, but applying those rules still requires careful review of the documents and the timing of each spouse’s consent.
If you and your spouse signed different IVF consent forms or now disagree about the use or disposition of frozen embryos, obtaining legal advice before additional fertility procedures occur can be important. The controlling document, timing of consent, any withdrawal of consent, and terms of the divorce settlement can all affect the outcome. Contact our IVF lawyer at the Law Office of Fedor Kozlov by calling (847) 241-1299 to schedule a consultation.
