Appellate Court Considering Illinois Frozen Embryo Case

In what will be a significant ruling, the Appellate Court for the First District of Illinois heard arguments in a dispute regarding the frozen embryos of an unmarried couple.  The trial court ruled in favor of the intended mother, the donor of the embryos, and held that her interests in being a mother outweighed her former boyfriend’s interests in not being a father.  The appellate court will have to decide several issues, including whether such a balancing test is applicable in Illinois or if the contractual language of the donor agreement stating that no use can be made of the embryos without the consent of both parties should prevail (and if so how that language should be interpreted).

There are practical and philosophical problems that arise in this case.  From a practical standpoint, where a child has not yet been considered legally conceived (I understand there may be some dispute as to the characterization, but I defer to current law for the purposes of this post) should one party be able to force the other into parenthood?  Where all other methods of producing a biological child have been eliminated, should one party be able to prevent the other from using a frozen embryo to have a biological child?

Perhaps part of the problem comes in terms of the law.  These two people clearly have little to do with each other now and it seems do not really want to have a child together.  A ruling in favor of the sperm donor prevents the egg donor from ever having a biological child — something very important to many women.  However, allowing the use of the embryos, due to the current law, cements the donors status as the legal father with all the rights and responsibilities that come along with that status.

In much of the United States, frozen embryos have been treated similarly to property, though this area of the law is still undergoing significant development.  Illinois, like many other states, has been slow to adopt laws that more accurately reflect and address the concerns of current reproductive technology, including a possible redefinition of the term parent, both with respect to rights and obligations.  Unfortunately, this is a case where it is quite easy to sympathize with both parties — and that makes these kinds of cases, and issues, the hardest to deal with.

One thing is absolutely clear, though.  No matter what the appellate court decides, this case is likely to be appealed to the Illinois Supreme Court and stands a good chance of having the petition for leave to appeal granted.