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Category: Family Law

Considering IVF? Here are 5 Key Things to Keep in Mind.

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Written by Olivia Long on 6.23.20

The widespread use of IVF (In Vitro Fertilization) has allowed many families to grow. It has also sparked more than a few hairy legal debates. If you’re considering In Vitro, it’s essential to be fully informed for the long-term benefit of yourself, your partner, and your children.

If you work with an anonymous donor from a sperm or egg bank, the individual will have signed their own agreement with the donation site waiving all parental rights and responsibilities. If you know your donor, however, all parties must work with attorneys to prepare, review, and sign a comprehensive donor agreement.

When creating pre-embryos with a partner, friend, or other known donor, here are the top 5 things to address in a donor agreement.

A patient consults with physician in a medical office.

A patient consults with physician in a medical office.

1. If my relationship ends, what happens to our embryos?

For each donor pair, eggs are extracted and combined with sperm to create pre-embryos, which are then frozen. Many embryos will be created, and some inevitably remain frozen and stored. It is essential to decide what will happen to the frozen embryos in the event of a breakup. The most fail-safe option is to agree to destroy the embryos. Some couples agree to donate them to science or to another couple, or to award the embryos to one partner or the other.

2. If the sperm or egg donor is not intended to have parental rights and responsibilities, how do I ensure that they will not claim parentage or have to pay child support in the future?

Illinois law dictates that the individual who is the “intended” parent of the child, according to the donor agreement, will be considered the legal parent. This “intent” should be clearly laid out in your agreement with regard to both parties, with the donor signing away all custody and control of both embryos and potential children. It’s safest to specify that the donor will never be required to provide financial support for the child. The boundaries for the donor’s future relationship with the child, if any, should be clearly defined. In all cases, the insemination procedure must be performed in a licensed medical facility.

3. Do I really need a lawyer for this? Can I write my own private agreement?

Yes, you need a lawyer! BOTH parties should work with their own individual attorneys before the donation process begins. In fact, many fertility centers require each party to have legal representation. We strongly advise against preparing your own agreement or simply downloading an agreement from the internet, as it may not contain all of the necessary provisions, and will not be tailored to your unique situation. Your attorney can suggest possible outcomes that you may not have considered, assist in your decision-making process, and ensure that your agreement is airtight. The signing of your agreement is an extremely important safety measure that could save you massive amounts of money and stress in the future.

4. My spouse and I are undergoing IVF using our own sperm and eggs. Does this apply to us?

In this case, while it is clear that both partners are intended to have parental rights and responsibilities, the salient question is how to handle any frozen embryos that exist should the couple, at any future point, decide to divorce. There will a question, amongst the many questions asked in the paperwork involved with IVF treatment, that says “Should the patient and her spouse divorce, the embryos should: be destroyed, be donated to science, be donated to another couple, be awarded to patient, be awarded to other spouse. . . .” along with a box to be checked for one option. It may seem sufficient to simply check this box to convey your wishes, but in the interests of complete clarity, it would be wise to formally memorialize the fact that both spouses discussed and agreed on the answer to this question. One way to do this would be to have both spouses write and sign affidavits attesting to the fact that they discussed the issue and agree on the same course of action in the event of divorce; an attorney can assist in the drafting of these affidavits of course, but in the absence of an attorney’s assistance, any document created should be witnessed by a notary public.

5. Beyond considerations about donor sperm or eggs, are there any unique concerns for same-sex couples starting a family through IVF?

In Illinois, 750 ILCS 46/703 governs parentage of a child, or children, born with assisted reproductive technology. Section 703 (a) states “(a) Any individual who is an intended parent as defined by this Act is the legal parent of any resulting child.” Same-sex couples engaging in IVF (with one partner as the patient, or through use of a surrogate) using donor gametes (from a party known to them or by anonymous donation) should retain legal counsel before treatment begins to receive clear advice and receive assistance in drafting a proper legal agreement. For same-sex couples who would like to make sure that both partners are legal parents of the child, this statute also specifically states that they may seek a court order the confirms the existence of a parent-child relationship, either prior to, or after, the birth of the child. For peace of mind, couples will likely want to discuss this with their attorney from the beginning and make sure to include such an order as part of the process.

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