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Divorce and Frozen Embryos: What Happens in a Chicago Divorce?

Divorce and Frozen Embryos: What Happens in a Chicago Divorce?

By: M. Scott Gordon

When married couples get divorced in Illinois, property is classified either as marital property — in which case it is divided between the parties according to the theory of equitable distribution — or it is classified as separate or non-marital property and is not subject to distribution. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides a range of statutory factors the court can consider as it determines how marital property should be divided. As you might imagine, classifying and distributing some types of property is easier than classifying and distributing other types of property. What happens to frozen embryos?

If a couple decides to freeze embryos during their marriage with the intention of having a baby, how are those frozen embryos classified? And are those frozen embryos subject to division in a Chicago area divorce? A recent case in Connecticut was one of numerous cases concerning frozen embryos in divorces. While that decision is not binding on Illinois courts in any capacity, the decision in that case could be instructive for Chicago area residents who are considering divorce and may need to address the issue of frozen embryos.

Case Addresses Frozen Embryos in a Divorce

According to an article in Newsweek, the Connecticut Supreme Court recently ruled in a case concerning the classification of frozen embryos in a divorce. In this case, a married couple had embryos frozen through in vitro fertilization (IVF), but they later divorced. The court ruled the frozen embryos were marital property that could be subject to “distribution” or “division” in a divorce. In this case, though, a previous agreement existed between the parties about what should happen to the embryos.

Prior to creating the embryos, the couple agreed frozen embryos would be destroyed in the event of divorce. The court ruled the agreement was enforceable. As such, the enforceable agreement meant the court did not need to decide how marital property like frozen embryos should be “distributed” since the agreement obviates that need.

What Should Chicago area Couples Expect in a Divorce Involving Frozen Embryos?

The primary case in Illinois that has addressed frozen embryos in a divorce is Szafranski v. Dunston (2015), a case in which a couple (Jacob Szafranski and Karla Dunston) froze embryos through an in vitro fertilization (IVF) agreement after Dunston learned she would need to undergo chemotherapy for lymphoma. The parties’ relationship later ended. Szafranski wanted the frozen embryos to be destroyed, but Dunston wanted to use them to have children.

The court determined that, although there was no written agreement about what would happen to the embryos, the couple had entered into an oral agreement. Without creating a written contract, the couple discussed and intended for the embryos to be used for Dunston to have children. Accordingly, the court found in favor of Dunston. The court’s reasoning was like that in the recent Connecticut case — when a contract of some sort exists, the contract should be upheld. However, Illinois courts have not yet addressed a case in which there is no clear agreement about or contract concerning how embryos should be classified or “distributed” in a divorce case.

Contact a Divorce Lawyer in Chicago

The matter of frozen embryos in a divorce is an extremely complicated one and Illinois courts have not yet ruled on how frozen embryos should be divided — if they are indeed marital property and there is no enforceable agreement between the spouses. If you have questions about property distribution in your divorce, a Chicago divorce lawyer can speak with you today. Contact Gordon & Perlut, LLC to learn more about how we can help.