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IVF and Divorce – High Court to Rule on a Parent’s Right to Not Be Forced into Procreation

 Posted on January 19, 2018 in Property Division

DuPage County divorce lawyersParenting changed the moment the first in vitro fertilization baby was born back. One would think that, since then, the law would manage to sort out what happens to a fertilized embryo if the prospective parents should ever divorce. Yet, as many couples learn, this is not the case. In fact, in the last 25 years, little progress has been made regarding the rights of each divorcing individual to either procreate or not procreate – but that could all soon change.

In a case that is set to be heard by the high courts in Colorado, an individual’s Constitutional right to procreate or not, and whether one outweighs the other person’s, will finally be ruled upon. Learn more about how and why this upcoming case is different than the previous IVF divorce cases, discover what the court’s potential decision could mean for your case, and gain insight as to how an experienced divorce lawyer can help improve the outcome of your situation.

More on the High Court Case

News sources indicate that the couple in question has six fertilized eggs. They are left over from the rounds that gave them three other children – twins and a baby boy. A short while after the twins were born, the couple realized that their relationship had started to crumble. That realization ultimately led to a messy divorce. Eventually, they settled and compromised on all aspects of their case, but one issue had to go to litigation; the husband wanted the embryos from their IVF rounds destroyed and the wife wanted to use them to achieve future pregnancies.

Lower courts from across the country have ruled upon such matters, with some deciding that the eggs should be destroyed while others have awarded them to the party that wanted to use them. In other words, there has not been any real consistency in such cases. High courts have ruled on similar cases in the past as well, but the exact details of this case will require them to examine it in a way that they never have before: does one potential parent have the right to force the other to procreate, or does that parent have the same right to refuse the genetic procreation of a fertilized embryo, much like a pregnant mother has the right to terminate a gestational pregnancy?

The True Weight of the High Court’s Ruling

Because the case is to be heard by the Colorado Supreme Court, other states will not have to use the ruling in their own divorce cases. That is why there is no real consistency yet in divorce cases involving IVF. Yet, unlike cases that have come before it, this one could be appealed to a U.S. Supreme Court, which would make that ruling apply in every state. If the court ruled in favor of the wife, then the rights of a party to force genetic parenthood on their spouse, even if the other does not want to care for or parent the children that come out of it. In contrast, if the court rules on the side of the husband, IVF embryos will most likely be destroyed in divorce unless both parties consent to their use.

Illinois Divorce and IVF Embryos

Although some states have set laws regarding how they determine what should be done with frozen embryos during a divorce, the state of Illinois has used three different approaches to make their decisions in the past. If a contract regarding how embryos will be treated in a divorce was created, consented to, and signed by both parties, the courts will typically use this document to make its determination. In the absence of such a document, the courts may either rule that the embryos remain frozen until both parties can agree on their fate, or they will weigh and rule in on the competing interests of each party. If the latter is used, then the courts will consider all relevant facts to the case, including a party’s inability to procreate without the embryos.

Contact Our Wheaton Divorce Lawyers

At Davi Law Group, LLC, we understand the sensitive nature of embryo decisions in divorce. Dedicated and experienced, our Wheaton divorce lawyers will work hard to ensure your interests are carefully considered. No matter what the circumstance, we will strive for the most favorable outcome possible. Get started on your case by scheduling a personalized consultation. Call 630-580-6373 today.



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