According to the American Society for Reproductive Medicine, the number of babies born through assisted reproductive technology, such as in vitro fertilization, has skyrocketed from 260 in 1985 to more than 61,000 in 2010. Couples may undergo the procedure to tackle current infertility issues, while others are harvesting healthy eggs to bring to term at a more opportune time in their lives. Legal issues regarding the custody of frozen embryos can emerge when circumstances change.
Friday, a court ruled that a female Chicago doctor and cancer survivor, will get custody of three frozen embryos, despite her ex-boyfriends objections. An Illinois appellate court ruled 2-1 to award the woman the embryos, even though her ex is adamant about not being forced into procreation, claiming that a co parenting agreement giving her custody of the eggs was never signed.
The case dates back to 2009, when the doctor and her then boyfriend underwent the procedure to create the embryos in reaction to her cancer diagnosis, fearing that the treatment for the disease would likely cause infertility. She wanted an opportunity to have a biological child and he agreed to help out. After the couple broke up the following year, the boyfriend claimed he was not interested in proceeding with the plan.
In awarding the embryos to the woman, the court recognized that the man and woman entered into an ‘oral agreement’. The opinion in favor of the decision stated that “the woman has a greater interest in the fate of the embryos than the ex boyfriend because they represent her last and only opportunity to have a biological child with her own eggs.” In contrast, the dissenting judge found no enforceable oral contract.
Because there is little legal precedence regarding the custody of frozen embryos, legal experts across the nation are curious to see how Illinois courts handle the complex issue. They believe the case could impact the outcome of other custody battles, such as the highly publicized Sophia Vergara frozen embryo custody battle. One of the few legal precedents in existence emerged from a 1992 Tennessee Supreme Court case, which found that ‘fatherhood would be a greater burden for the ex-husband than destroying the embryos would be for his ex-wife’.
Although the woman won this round, she is barred from implanting the embryos until the appeals are exhausted. The man plans to appeal the decision through the Illinois Supreme court, although it is not clear if the court will hear it after declining previously.
If you have a legal question or concern regarding assisted reproductive technology/frozen embryos custody, contact the Law Offices of Schlesinger & Strauss for help. Attorney Gary Schlesinger has handled Frozen Embryos in Dissolution Cases (see updated article), presented on the topic at state gatherings of the Bar Association and has researched and written many supporting articles regarding the issues. Call today for help.
Source: The Chicago Tribune, Court Gives Frozen Embryos to Chicago Woman Over Ex’s Objection, by Angie Leventis Lourgos, June 14, 2015.