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Determining Rights to Frozen Fertilized Embryos

Posted on in Paternity

Determining Rights to Frozen Fertilized EmbryosAn advancement in reproductive technology has created new paternity conflicts that end up in court. When a woman has saved frozen fertilized embryos but the potential father no longer wants to have a child, does the woman still have a right to use the embryos? This situation can arise when spouses divorce, a couple breaks up or the sperm donor changes his mind. State courts have in some cases allowed the women use the embryos, despite the prospective father’s objection. A verbal agreement can be enough to enforce a woman's right to the embryos.

Frozen Fertilized Embryos

Cryopreservation of fertilized embryos has existed for decades, but the survival rate of the embryos has increased in recent years. Women choose to freeze their embryos because:

  • They can decide when they will become pregnant;
  • They are unsure whether they want children or how many they want to have; or
  • They have a medical condition that prevents them from carrying a child at that time.

Some women are sterilized or become infertile after they preserve their embryos, meaning that the embryos are their only means of having a biological child.

Court Outlooks

There are no state laws or federal regulations regarding each party's rights when potential parents disagree on the use of frozen fertilized embryos. Courts must balance the right of a woman to have a child against forcing paternity onto a man. Courts have taken multiple approaches to such disputes:

  • They may consider whether the parties made an official agreement on using the embryos and hold the parties to that agreement;
  • They may recognize either party's right to change his or her mind on using the embryos; or
  • They may weigh the details of the case to determine whether to enforce the agreement.

Illinois Decision

Many state courts have ruled that protecting a person from being forced into parenthood outweighs another person’s right to reproduction. However, an Illinois court favored a woman’s reproductive rights in a recent ruling. According to the case, the woman needed to undergo chemotherapy that would make her infertile. She reached an agreement with her then-boyfriend to fertilize her embryos, which would be frozen and used after she had recovered from her treatment. Months later, the man said he no longer wished to be the father of her child. The Illinois court stated that the two parties had an oral agreement to use the embryos, which superseded a fertility clinic consent form that said the embryos could not be used without both parties' permission.

Paternity Obligations

Being the biological father of a child can make you liable for child support payments. A Kane County family law attorney with Goostree Law Group can help you define your paternity rights and responsibilities. For a free consultation, call 630-584-4800.


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