In the past decade, the use of assisted reproductive technology (ART) has almost doubled. In 2005, 27,047 mothers giving birth to nearly 37,000 babies. You read that correctly – multiple births (twins, triplets) are much more common when using ART. In 2018, that skyrocketed to 73,831 mothers giving birth to 81,478 babies, nearly 2% of all infants born in the United States.
One common form of ART is known as “embryo cryopreservation” – freezing a fertilized embryo for storage and use at a later date. In October 2020, Molly Gibson was born after she was conceived using a donated embryo, frozen 27 years ago, setting the record for the longest frozen embryo to result in a live birth. She broke the previous record set by none other than her older sister. Frozen embryos in particular can have long-lasting implications for couples, especially if the relationship deteriorates after the embryos are frozen and stored.
Illinois courts haven’t yet set many precedents telling us how frozen embryos will be treated during a divorce or after a breakup. So far, we get our best guidance from Szafranski v. Dunston:
The second reason is exactly why having a contract is so important. Without one, what becomes of your frozen embryos comes down to asking the judge to take your side and hoping you are more persuasive. In Szafranski, the couple involved weren’t married – Karla Dunston and Jacob Szafranski, who had been dating for only a couple of months, decided to freeze some embryos after Karla was told she would likely struggle to conceive after chemotherapy. After creating and freezing eight embryos, Jacob and Karla broke up, and Jacob voiced his reservations about Karla using the frozen embryos. In the end, the Circuit Court granted Karla sole custody and control of the frozen embryos and made no decision regarding Jacob’s financial obligation to any children that result from Karla using the embryos.
As you can see, there is a lot left in the air here in Illinois regarding frozen embryos from an ended relationship, especially when there is no contract. Here at Kiswani Law, we recognize how complicated family life already is, and how intense using ART can be for a couple. Contracts between loved ones are common and let everyone involved know what to expect in the future and can help alleviate some of the pressure of ART. Call us today to schedule a consultation and discuss your case.