Addressing Embryos in a Prenuptial or Postnuptial Agreement

 Posted on July 30, 2025 in Premarital Agreement

For couples planning to grow their families through in vitro fertilization (IVF) or surrogacy, the joy of planning for children can come with complicated legal and ethical considerations. One of the most important yet often overlooked issues involves deciding what will happen to embryos in the event of divorce or death. Whether you are engaged and considering a prenuptial agreement or already married and discussing a postnuptial agreement, this delicate topic should be addressed before problems come up.

As of July 2025, Illinois law does not provide definitive answers about the disposition of embryos when couples separate. Courts will first look to any agreement signed at the fertility clinic and follow its terms. If there is another contract, such as a prenuptial or postnuptial agreement, the Court will typically enforce it. 

Questions about the treatment of frozen embryos can be very challenging. Our Inverness, IL family lawyer can help you and your partner think through these difficult questions and create a pre- or postnuptial agreement that protects your wishes. 

Can Embryos Be Included in a Prenuptial Agreement?

For couples preparing for marriage, a prenuptial agreement can outline how frozen embryos will be treated if the marriage ends. Intended parents often choose IVF because of medical conditions, age-related infertility, or a desire to preserve fertility for the future. Addressing embryo custody before marriage allows both partners to write a careful contract when they are thinking calmly and rationally.

Illinois Courts may enforce these provisions if they are clear, made in good faith, and do not violate public policy. A prenup can specify whether embryos will be:

• Discarded

• Donated to scientific research

• Donated to another couple or individual

• Kept for one partner’s use

Couples need to move beyond mere conversations and create enforceable agreements. Otherwise, Courts may allow a mother to proceed with implantation unless a father can prove there were specific conditions regarding the embryos’ use or destruction. 

Can Couples Who Are Already Married Write a Contract for Their Embryos?

If you and your spouse are already married and have frozen embryos, you may be able to address their status in a postnuptial agreement. A postnup serves a similar purpose to a prenup; it allows spouses to decide how property and other important issues will be handled if the marriage ends.

Without a written contract, Illinois Courts will look closely at factors such as why the couple pursued IVF, whether one spouse is using the embryos in bad faith to gain leverage, and whether the spouse seeking to implant the embryos has alternative options for having genetic children. Unless there is an agreement stating otherwise, an intended father could still be considered a parent to the embryos, even if he later changes his mind.

Write a Strong Embryo Contract Now, Save Yourself Heartache and Money Later

Embryo custody disputes can be emotionally devastating and very expensive. When couples disagree, Illinois Courts often consider the intentions of the spouse seeking to implant the embryos and may favor that spouse if they cannot have genetic children without them. Without a clear, enforceable agreement, the outcome may not align with either partner’s original intentions.

By working with a compassionate attorney who understands both the legal and emotional complexities of this topic, you can create a contract that provides clarity and prevents conflict later. Whether you view embryos as life or as property, you deserve a plan that reflects your values.

Contact a Barrington, IL Family Law Attorney

At The Law Office of Nicholas W. Richardson, P.C., our Inverness, IL family law attorney helps couples navigate prenuptial and postnuptial agreements, addressing sensitive issues like IVF and embryo custody. We understand Illinois law and approach these matters with care and discretion. Call us at 847.873.6741 to schedule a free consultation.