To Procreate or to Not Procreate: Whose Right is Most Valid?

 Posted on September 10, 2014 in Family Law

In recent years, assisted reproductive technology has progressed rapidly and has provided women and men the opportunity to become parents. In 1985, through this new reproductive technology, 260 babies were born to parents who otherwise would not have been able to conceive. As of 2010, more than 61,000 children were born as a result of the newest technology. However, with the amazing results that have occurred from the utilization of this reproductive technology, also comes legal controversies in regards to the rights of the donors. Is the right to not procreate outweighed by the right to procreate?

Illinois’s Stand on the Right to Not Procreate

This legal controversy has been pushed in the direction of the right to procreate with a recent ruling by the Cook County court in Illinois. The Court awarded custody of the frozen embryos that were prepared prior to the woman’s chemotherapy treatment for her lymphoma. The chemotherapy had the effect of destroying the woman’s chance to conceive otherwise. Her now-ex boyfriend had originally agreed to provide his sperm for the embryos and later objected to the use of the embryos after the couple had split. The ex-boyfriend cited privacy issues, stating that the use of his genetic material could have a negative impact in regards to his future with other women.

The case, though the Illinois Supreme Court decided not to review the appeal, provides a direction in reproduction law that the Court would like Illinois to follow. In the face of any objection to procreate, the Court has determined through this ruling that the right to procreate outweighs the objection. Other states have had mixed rulings surrounding the rights of donors and the custody of frozen embryos once a couple has split.

The determinative factor in this case was based largely on the fact that the woman was unable to reproduce as a result of her cancer treatment and that the couple had orally agreed to the conception, even though they had not signed a co-parent agreement determining control of the embryos.

Creation of a Donor/Co-Parent Agreement

Though Illinois courts have shown themselves to be pro-reproduction rights, it is important if you are considering having a child with a non-marital partner or an acquaintance as a donor through assisted reproductive technology that an agreement be written. The agreement should state and define the terms of the custody and control of the embryos and the relationship that the donor or non-marital partner will have once the child is born.

When writing your agreement consider the following:

1. To what extent may the donor or non-marital partner decide when and where the embryos will be implanted?

2. Will the donor be known to the child once the child has been born?

3. Will the donor have any type of visitation rights with the child?

4. Will the donor be required to help the child in the case of a medical emergency and/or the donor’s medical history might be needed?

5. If the donor remains in the child’s life as a paternal figure, will the child be able to receive financial support from the donor?

Legal issues surrounding assisted reproductive technology are extremely complex, and it is important to consult an experienced family law attorney who will be able to provide guidance and advice with regards to your decision to conceive a child with a non-marital partner or an acquaintance as a donor. Ironing out the details and terms of the relationship is crucial to ensuring that you bring a child into this world without any legal battles or controversy surrounding his or her birth. Please contact the experienced DuPage County family law attorneys at Mevorah & Giglio Law Offices for more information.