According to the World Health Organization, 1 in 6 people globally are affected by infertility. With increased occurrences of infertility, as well as with the Obergefell v. Hodges decision legalizing same sex marriage nationwide, there exists a demand for the use of artificial reproductive technology (ART).
One common form of ART is In-Vitro Fertilization (IVF), which often requires the creation of embryos (or the use of donated embryos). While people don’t typically foresee their divorce or a breakdown of their relationship while they are actively trying to build a family, the reality is that many couples who undergo IVF (and other forms of ART) and who create or otherwise utilize embryos ultimately do end up going their separate ways.
The disposition of embryos in Illinois has not been addressed by the legislature. If a couple does not properly enter into a contract regarding embryo disposition in the event of their divorce or separation, the fate of those embryos will be left to the courts. In August of 2022, the Second District Appellate Court made a decision in the case of Marriage of Katsap and analyzed the three different common law approaches the courts have employed in resolving disputes over frozen embryos, specifically:
- The “contractual approach,” in which the courts will enforce the parties’ unambiguous agreement in anticipation of divorce;
- The “contemporaneous mutual consent approach,” in which the Courts will not enforce earlier agreements between the parties if one or both of them have subsequently changed their minds; and
- The “balancing approach,” where in the absence of an enforceable agreement (option 1 above), the courts balance each party’s interest in seeking or avoiding procreation.
Most courts agree that having an agreement between the parties is the preferred method of disposition, though that approach is not perfect, for reasons set forth in more detail below. The second option, contemporaneous mutual consent, which basically means “do nothing until the parties eventually agree,” isn’t efficient. In the Katsap case, however, the courts utilized the balancing approach.
In doing so, they weighed the parties’ individual interests. The Katsap court noted that historically, when courts have utilized the balancing approach, the cases started with the premise that the party who was seeking to avoid procreation should prevail if the other party (who is seeking to utilize the embryos) has a reasonable possibility of achieving genetic parenthood by means other than the use of the embryos at issue. In Katsap, however, the Wife was unable to produce any more eggs and was otherwise unable to carry a child to term. The embryos at issue were her only means to potentially have a biological child. Therefore, in employing the balancing approach, the Court found that the Wife’s inability to otherwise have a genetic child outweighed the Husband’s interest of avoiding procreation, and awarded the embryos to Wife.
So what’s the problem? Child Support.
In Illinois, there are at least 3 different statutes that address the issue of parentage and child support in this context. The Illinois Gestational Surrogacy Act, the Illinois Parentage Act, and the Illinois Uniform Premarital Agreement Act.
In Katsap, child support was not an issue. The Appellate Court found that pursuant to the Illinois Gestational Surrogacy Act, the Husband is a “donor” and not the “intended parent” of a potential child resulting from the embryos at issue. Therefore, he would not have any duty to financially support the child.
According to the Illinois Gestational Surrogacy Act, a “donor” is an individual who contributes a gamete (sperm or egg) for purposes of IVF or implantation in another. An “intended parent” is a person who enters into a gestational surrogacy contract with a gestational surrogate pursuant to which he or he will be the legal parent of the resulting child. However, the Illinois Gestational Surrogacy Act is only applicable if 1) the parties employ a surrogate and 2) the parties enter into a Gestational Surrogacy Agreement, as was the case in Katsap.
What happens if surrogacy is not a factor, as is the case with many ART procedures?
According to the Illinois Parentage Act, a donor is an individual who participates in an ART arrangement by providing gametes and relinquishes all rights and responsibilities to the gametes so that another individual may become the legal parent or parents of any resulting child. Pursuant to Section 702 of the Illinois Parentage Act, a donor is not a parent of a child conceived by means of assisted reproduction. However, the definition of a “donor” does not include a spouse in an ART arrangement in which his or her spouse will parent any resulting child.
What if at the time these embryos are created, the person donating a gamete is not a donor? What if he or she is an active, willing participant in creating the embryos in the hopes of creating a child. This begs the question, if the parties were married (or otherwise in a dating relationship) when the embryos were created, but are not married (or in a relationship) when the embryos are used, is the ex-spouse/partner a donor? Arguably not. If there exists a question of whether a party is a donor, then there exists the question of whether a party is a parent under the Illinois Parentage Act. And if someone is deemed to be a legal parent, that person also has the responsibility to financially support the child.
With all of these uncertainties, there are advantages to spelling out the parties’ rights and obligations with regard to embryos in a written contract before participating in an ART arrangement. Even that, however, has its limitations. The Illinois Uniform Premarital Agreement Act specifically sets forth that the right of a child to support may not be adversely affected by a premarital agreement. In other words, if the parties address their embryos (or perhaps provide for the possibility of future embryos) in a premarital agreement, they cannot contract away the obligation to pay child support. So, while a premarital agreement may make it clear what the parties’ intentions are for purposes of potential embryo disposition, any terms regarding child support would be unenforceable in the courts.
Ultimately, the law here seems half-baked. Illinois has clear case law on how to decide embryo disposition, but has not yet dealt with the consequences with regard to child support. As it stands, absent the use of a gestational surrogate with a written contract, it is not at all clear whether the party who did not want to procreate will be considered a donor or a parent, and whether that party will have a legal obligation to support any resulting child from the embryos using their gametes.
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