Aubrey J. Parker

Today’s family building technologies are ever-improving and evolving.  While couples now have more options than ever to bring children into the world, they also have more to fight about.  One of the many issues separating couples must now consider is the disposition of their frozen embryos.


For some, the idea of parenthood, financial obligations that may stem from a forced parenthood situation, and the competing desire to preserve one’s ability to have children make this issue inherently complex.  Accordingly, couples must be extremely specific and detailed when considering the consent forms couples must sign prior to creating and freezing embryos.  While a happy moment is easily glossed over, consent forms that are missing key terms are often a prime set up for future litigation in the event of a breakup, meaning financial and emotional costs.


In a litigation context, courts consider what, if any, contract exists memorializing the intended parents’ desires and intentions.  In Illinois, while written contracts are always preferred, oral contracts can be considered, as well.  Generally the first in time controls, meaning that whatever contract, whether oral or written, was entered into first will likely be binding on a couple in terms of frozen embryo disposition.  Perhaps more surprising to some is that a court, in the absence of explicit restrictions or directions on the use of frozen embryos may allow one party to use the embryos without obtaining the consent of the other party, again highlighting the importance of a well-crafted and expertly drafted contract.


Due to the increasing prevalence of this issue in our ever-changing society and the complex issues involved in negotiating not only the creation of an in-tact family, but also the potential creation of a separated family, intended parents should always consult with an attorney.  With proper guidance and assistance, a document can be drafted that protects both intended parents and their true interests and desires.

Aubrey J. Parker, Divorce and Family Law Partner