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Who gets frozen embryos in an Illinois divorce?

When you and your spouse created frozen embryos in the hope of having children at some point, you never imagined that you'd end up divorced. Suddenly, those embryos are no longer a blessing but a complicated part of your divorce proceedings.

What happens now?

The answer may depend on how much you and your spouse agree on what should happen. If you agree that the embryos should be destroyed, you can make that decision.

Problems only develop when one spouse wants to destroy frozen embryos and the other wants to keep them for future use. At that point, the courts have to step in and decide whose interests ultimately outweigh the others. Many see the issue as being a complex question of how ethics, morality, human rights, biology and religion intersect.

Here are some of the factors a court may consider when one spouse wants to destroy frozen embryos in a divorce and the other wants to preserve them:

  1. Is there a pre-existing contract between the parties regarding the embryos? Does it specify what happens in a divorce?
  2. Is either party acting in "bad faith" (using the embryos as leverage to get something they want)?
  3. What emotional and financial hardship would having those embryos become children present for the party that wants the embryos destroyed?
  4. What other opportunities for procreation are available to the party that wishes to preserve them?

In the past, Illinois courts (and the courts in other states) have awarded embryos to the party seeking to preserve them and make them into children -- but that doesn't necessarily mean that the law on the issue is static. Medicine -- and the law regarding embryos, zygotes and other biological material -- is constantly adapting to new developments (and changing social attitudes).

If you suspect that your frozen embryos or other biological material could become an issue in your divorce, seek appropriate legal advice early. It's far better to be prepared for the potential problem than to be taken by surprise.

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