Law Office of Vincent C. Machroli, P.C.
High Point Plaza, 4415 West Harrison Street, Suite 213, Hillside, IL 60162
High Point Plaza, 4415 West Harrison Street, Suite 213
Hillside, IL 60162



Who Gets Custody of the Frozen Embryos in an Illinois Divorce?

 Posted on July 13, 2017 in Divorce

Illinois divorce lawyerInfertility is a serious and common issue in marriage, which is why many couples turn to in vitro fertilization to conceive. What happens, though, if the couple then divorces? Who gets custody of the embryos? Does anyone? Furthermore, who gets to make the decision? The following information explores the subject of frozen embryos in a divorce, including how they are dealt with and how you can attempt to protect them with help from an experienced legal professional.

The Difficult Truth

Embryos, though typically comprised of both parents’ DNA, are not considered humans by most courts. Illinois law continues to treat them as marital assets. The unfortunate part about this approach is that these assets – unlike homes and cars – have no monetary value. Further, they can become a financial liability for the other parent, should the “custodial” party decide to use the embryos to conceive a child. As such, courts often decide that embryos must be destroyed. Alternatively, they may rule that the embryos can continue to be stored, but no one is permitted access unless they have obtained permission from the other party.

A Few Alternatives

It can be difficult to know that your only chance of conceiving a child is going to be decided by a court. If faced with this situation, sometimes spouses may be able to work out a negotiated agreement on this subject. It might not be easy to reach such an agreement, it may come with a lot of conditions, and there is always the chance that the matter will still go to litigation, but it may be worth the effort. Take, for example, the couple that froze embryos because the wife had cancer. If chemotherapy rendered her infertile, her husband may have sympathy and understanding, despite them being involved in a divorce case.

Another option would be to create an agreement at the time the embryos are created. In it, the couple could determine what would happen to the embryos if they ever divorce. This option may not work for couples already considering divorce since, during the embryo creation time couples are still hopeful about having a baby, but during a divorce, that hope no longer exists – at least not with them together.

In either case, couples should seek skilled legal assistance with creating such an agreement. Without such professional help, they are far more likely to miss a critical element of the agreement, or they may be unsuccessful in negotiations and may, instead, create a more contentious situation.

Contact Our Hillside, IL Family Law Attorney

If you are planning on filing for divorce and have embryos with your spouse, or if you would like to understand your options before creating embryos, contact the Law Office of Vincent C. Machroli, P.C. for skilled legal assistance. With more than 30 years of family law experience, our skilled Hillside, IL family law attorney will work hard to negotiate favorable terms in your agreement. Get started by scheduling a personalized, no charge consultation. Call 708-449-7400.



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