Frozen Embryos and Divorce or Separation: Who Decides Their Future Under Illinois Law?

Thought Leadership, Legal Education & Advocacy from Berlin Melzer Law

By Rebecca Berlin Melzer | Berlin Melzer Law LLC

When a couple undergoes in vitro fertilization (IVF), they are typically focused on creating a family—not what will happen to their frozen embryos if their relationship ends. But when divorce or separation occurs, the question of who controls those embryos can become one of the most legally complicated and emotionally significant disputes between the parties.

Can one spouse use embryos without the other's consent? Can a former partner demand their destruction? Does a fertility clinic's consent form control? And what happens when a divorce judgment fails to address the embryos at all?

Illinois courts have confronted these questions in several important decisions, including Szafranski v. Dunston, In re Marriage of Katsap, Miller v. Fertility Centers of Illinois, and Sani v. Institute for Human Reproduction

As an Illinois family law attorney who has served as litigation counsel in contested frozen embryo disputes, including involvement in Miller and Sani cited above, I have seen firsthand how complicated these cases can become—and why the agreements signed before fertility treatment may have consequences years later.

What Happens to Frozen Embryos When a Relationship Ends?

When individuals undergo IVF, they may create more embryos than are ultimately transferred. Remaining embryos can be cryopreserved for future use.

If the couple later separates or divorces, they may disagree about what should happen to those embryos.

Depending on the circumstances and applicable agreements, potential options include continued storage, transfer for reproductive use, donation for research, donation to another recipient, or destruction.

Some individuals may also explore a procedure known as compassionate transfer.

These choices raise questions involving reproductive autonomy, contractual rights, consent, and the legal obligations of fertility clinics.

Unlike bank accounts, retirement assets, or real estate, frozen embryos cannot simply be divided as ordinary marital property.

The Importance of IVF Consent Forms and Embryo Disposition Agreements

Before undergoing fertility treatment, patients are often required to sign extensive medical consent forms and agreements concerning the creation, storage, and disposition of embryos.

These documents may address what happens in the event of death, divorce, separation, or disagreement.

However, the existence of a signed form does not necessarily resolve every future dispute.

For example, a couple may undergo several IVF cycles, but the original consent agreement may apply only to a particular treatment cycle. The documents may address what happens after a divorce without specifying what happens while divorce proceedings are pending.

Agreements governing embryos may also appear in prenuptial agreements, postnuptial agreements, donor agreements, marital settlement agreements, and estate planning documents.

The critical question is not simply whether an agreement exists, but whether it is enforceable and actually governs the embryos and circumstances in dispute.

This distinction has played a significant role in Illinois embryo litigation.

Szafranski v. Dunston: The Importance of Prior Agreements

One of the most significant Illinois decisions concerning frozen embryos is Szafranski v. Dunston, 2015 IL App (1st) 122975-B.

The case involved an unmarried couple who created embryos through IVF after Karla Dunston was diagnosed with cancer and faced the possibility of infertility.

Following the end of their relationship, the parties disagreed over whether Dunston could use the embryos without her former partner's consent.

The litigation established an important framework for resolving embryo disposition disputes in Illinois.

Under the approach adopted by the Illinois Appellate Court, courts first consider whether the parties entered into an enforceable agreement governing disposition.

When no enforceable agreement controls, courts may balance the parties' competing reproductive interests.

In the subsequent appeal, the court upheld the trial court's determination that the parties had entered into an enforceable oral agreement permitting Dunston to use the embryos.

The court also addressed the relationship between that agreement and the fertility clinic's informed consent documentation.

The lesson from Szafranski is that the parties' intentions and agreements can be central to determining what happens to frozen embryos—even when the relationship has ended.

In re Marriage of Katsap: What Happens When There Is No Enforceable Agreement?

The Illinois Appellate Court further examined embryo disposition in In re Marriage of Katsap, 2022 IL App (2d) 210706.

Unlike Szafranski, Katsap involved a married couple divorcing after creating frozen embryos.

The parties disagreed over who should control the embryos, and the trial court found that there was no enforceable written or oral agreement governing their disposition.

The trial court initially awarded control to the husband. On appeal, however, the appellate court reversed the disposition decision.

The appellate court identified several considerations relevant to balancing competing reproductive interests, including:

• The intended use of the embryos by the person seeking to preserve them.

• Whether that person has other realistic opportunities to have biological children.

• The parties' original reasons for pursuing IVF.

• The emotional, financial, and logistical consequences of unwanted genetic parenthood.

• Whether either party acted in bad faith or attempted to use the embryos as leverage in divorce proceedings.

The court placed particular importance on the wife's reproductive circumstances, including the significance of the embryos to her opportunity to have another biological child.

Katsap illustrates that when no enforceable agreement governs, courts may be required to weigh deeply personal and competing interests rather than simply applying traditional property division principles.

Miller v. Fertility Centers of Illinois: Representing a Spouse in a Contested Frozen Embryo Dispute

Another significant Illinois case involving reproductive technology and divorce is Miller v. Fertility Centers of Illinois, 2025 IL App (1st) 241645.

The litigation originated from a dispute between Andrea Miller and her former husband, Robert Lyons, concerning frozen embryos created during their marriage through in vitro fertilization (IVF).

Attorney Rebecca Berlin Melzer represented Robert Lyons in the underlying litigation involving the parties' competing rights to the frozen embryos.

A central issue was whether the fertility clinic's consent agreements controlled the disposition of the embryos. The parties had undergone multiple IVF cycles, raising questions about whether documents signed during one treatment cycle governed embryos created during a later cycle.

The divorce court considered whether an enforceable agreement existed under the framework established in Szafranski v. Dunston, which directs Illinois courts to examine the parties' agreements before balancing their competing reproductive interests.

Rebecca successfully opposed a motion for declaratory judgment during the underlying litigation, illustrating the importance of evaluating the scope and enforceability of IVF consent agreements before a court determines the parties' rights.

The divorce court ultimately determined that the relevant consent agreement did not govern the embryos at issue and, after balancing the parties' interests, awarded them to Miller.

The dispute subsequently gave rise to separate litigation against Fertility Centers of Illinois and other fertility providers. Miller alleged that the clinic's consent documents and related conduct failed to adequately protect her claimed rights to the embryos.

In Miller v. Fertility Centers of Illinois, the Illinois Appellate Court affirmed the dismissal of Miller's claims against the fertility providers, including allegations of negligence, breach of contract, breach of fiduciary duty, and medical battery.

The case highlights several important considerations in Illinois frozen embryo litigation:

• Fertility clinic consent agreements may not govern every embryo created during a couple's treatment.

• The language and scope of agreements signed during different IVF cycles can be critically important.

• A dispute over embryo disposition may require separate legal proceedings to determine the parties' contractual and reproductive rights.

• Litigation involving frozen embryos can extend beyond divorce court and involve claims against fertility providers.

Rebecca's representation of Lyons provided firsthand experience litigating the contractual and reproductive rights questions that arise when former spouses disagree about the future of embryos created during their marriage.

For individuals facing a similar dispute, the case demonstrates why careful review of fertility clinic agreements, early litigation strategy, and experienced family law counsel are essential.

Case reference: Miller v. Fertility Centers of Illinois, 2025 IL App (1st) 241645.

Sani v. Institute for Human Reproduction: Enforcing Agreements to Destroy Frozen Embryos

Another important Illinois case demonstrating the complexities of frozen embryo litigation is Sani v. Institute for Human Reproduction, 2026 IL App (1st) 252264-U.

The litigation arose from a dispute between Lemna Parvini Sani and her former partner, Abdulmajid Fahoum, concerning three frozen embryos created through in vitro fertilization.

Attorney Rebecca Berlin Melzer represented Fahoum, who sought to prevent the use of the embryos and obtain their destruction following the end of the parties' relationship.

Fahoum initiated litigation in the Domestic Relations Division of the Circuit Court of Cook County to protect his reproductive interests and prevent the embryos from being transferred or used without resolution of the parties' rights.

The court granted emergency temporary restraining relief, and the parties subsequently entered into an agreed order addressing the disposition of the embryos.

Under that agreement, both parties were required to execute the necessary fertility clinic consent documents to effectuate the destruction of the embryos.

However, the dispute did not end with the entry of the agreed order.

When Sani failed to execute the required documents, additional enforcement proceedings followed. The litigation ultimately involved civil contempt proceedings, and Sani later signed the consent form required for destruction of the embryos.

Sani subsequently filed a separate lawsuit against the Institute for Human Reproduction, alleging breach of contract, medical negligence, unjust enrichment, and other claims related to the fertility clinic's consent documentation.

The circuit court dismissed her complaint with prejudice.

On August 18, 2026, the Illinois Appellate Court affirmed that dismissal, concluding that Sani had failed to provide an adequate appellate record to establish reversible error.

The case illustrates an important but often overlooked issue in frozen embryo litigation: obtaining an agreement or court order concerning embryo disposition may be only the first step. Enforcing that agreement can require additional legal proceedings, particularly when a party refuses to sign the documents required by a fertility clinic.

For individuals facing these disputes, the case underscores the importance of carefully drafted embryo disposition agreements, specific court orders, enforceable deadlines, and a litigation strategy that addresses not only who controls the embryos, but how the agreed disposition will actually be accomplished.

Rebecca's representation in this matter reflects her experience litigating reproductive rights disputes on behalf of individuals seeking to prevent the use of embryos and secure their destruction.

Case reference: Sani v. Institute for Human Reproduction, 2026 IL App (1st) 252264-U (Illinois Appellate Court, August 18, 2026).

Can a Court Prevent Frozen Embryos From Being Used or Destroyed?

Sometimes an embryo dispute requires immediate legal action.

For example, one party may believe that an embryo transfer is imminent, that embryos may be discarded, or that a fertility clinic intends to act before the parties' rights have been determined.

Depending on the circumstances, attorneys may consider seeking temporary injunctive relief to preserve the status quo.

Other litigation strategies may include:

• A declaratory judgment action to determine the parties' legal rights.

• Summary judgment when an enforceable agreement and undisputed facts support that relief.

• A temporary restraining order or preliminary injunction.

• A separate hearing on embryo disposition before other divorce issues are resolved.

• Appropriate participation by a fertility clinic or other necessary party.

These procedures are not automatically available in every case. The appropriate strategy depends on the agreements, the evidence, jurisdiction, and the relief requested.

The timing of legal action can be critically important when embryos are at risk of transfer or destruction.

What Happens When the Court Orders Embryos Destroyed but a Party Refuses to Cooperate?

Obtaining an agreement or court order concerning embryo disposition is not always the end of the dispute.

A fertility clinic may require both parties to execute additional consent documents before it will destroy embryos.

One party may refuse to sign those documents even after agreeing to their destruction or being ordered to cooperate.

In such circumstances, further court proceedings may become necessary.

Depending on the facts and the existing orders, attorneys may consider enforcement proceedings, requests for civil contempt, or other relief designed to secure compliance.

The involvement of the fertility clinic may also require careful consideration of whether the clinic must be joined as a party.

This is one reason embryo disposition orders should be drafted with particular care.

A well-prepared order should identify the embryos involved, establish clear deadlines, specify the documents each party must execute, and address the steps required to complete the agreed disposition.

An agreement about what should happen to embryos is only useful if its terms can be effectively implemented.

Five Questions Couples Should Address Before Beginning IVF

Although many embryo disputes arise after relationships end, careful planning before fertility treatment may reduce future uncertainty.

Couples should consider:

1. What happens if we divorce or separate? Will the embryos be preserved, used by one person, donated, or destroyed?

2. Does our agreement cover every IVF cycle? Will additional embryos require new agreements or consent documents?

3. What happens if one person changes their mind? Does the agreement address future disagreements about reproductive use?

4. What happens if one person dies? Are the disposition instructions consistent with estate planning documents and applicable law?

5. What happens if a court order is necessary? Does the agreement clearly identify the obligations of the parties and the fertility clinic?

Because the enforceability of embryo agreements depends on applicable law and the circumstances, independent legal advice may be important before signing documents with potentially lasting consequences.

Reproductive Technology Is Changing Illinois Family Law

Assisted reproductive technology continues to create legal questions that traditional divorce laws were not originally designed to address.

Frozen embryos raise difficult issues involving the right to become a genetic parent, the right to avoid genetic parenthood, the significance of contractual consent, and the appropriate role of courts in resolving reproductive disputes.

These questions may arise between married spouses, unmarried partners, or former partners years after embryos were created.

As the technology evolves, careful legal planning and experienced litigation counsel become increasingly important.

Rebecca Berlin Melzer: Experience in Frozen Embryo Litigation

I have had the opportunity to address these issues both in court and through professional legal education.

I served as litigation counsel for Robert Lyons in litigation involving Andrea Miller, successfully opposing a motion for declaratory judgment. I have also represented a party in litigation involving Lemna Parvini Sani, obtaining relief resulting in the destruction of embryos.

In October 2026, I presented on reproductive technology and embryo disposition at the Illinois State Bar Association's Family Law Update: Music City Conference in Nashville. I have also presented on reproductive technology and divorce for the Chicago Bar Association and on reproductive technology and the law at the Lake County Bar Association's family law seminar in Denver, Colorado in April 2026. I also previously presented on the topic for the Decalogue Society of Lawyers in Illinois.

These experiences have reinforced an important lesson: embryo disputes require more than an understanding of divorce law. They demand careful analysis of contracts, reproductive rights, procedural remedies, and the practical realities of fertility treatment.

Facing a Frozen Embryo Dispute in Illinois?

If you are divorcing, separating, or involved in a disagreement about frozen embryos, understanding your legal rights before taking action is essential.

Berlin Melzer Law represents individuals in complex family law litigation, including disputes concerning the use, preservation, control, and destruction of frozen embryos.

We serve clients throughout Chicago, Cook County, Lake County, DuPage County, and surrounding Illinois communities.

Contact Berlin Melzer Law to schedule a confidential consultation about your frozen embryo or reproductive rights dispute.

Berlin Melzer Law LLC
www.berlinmelzerlaw.com
312-602-9789

This article is provided for general educational purposes and does not constitute legal advice. The outcome of any legal matter depends on its individual facts and circumstances. Past results do not guarantee future outcomes.