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: