Couple goes through IVF, breaks up. Who decides what to do with the fertilized ova?She offered to waive child support, but that is not so simple. If he is named the father, and she goes on welfare, then he will be forced to pay child support whether the mom asks for it or not.
The Appellate Court of Illinois chimed in a few weeks ago, in Szafranski v. Dunston, and summarized the precedents. Here’s the fact pattern, which is apparently not unusual: Man (Jacob Szafranski) and woman (Karla Dunston) were dating; woman learned that she had cancer and that the treatments would make her infertile; she wanted to have children, so she and the man went through IVF; but then they broke up. She now wants to have one of the fertilized ova implanted, but he doesn’t. Concern about child support apparently isn’t the main problem.
Perhaps they can eliminate his legal paternity before birth, but I don't think that the court decision covers that.
E. Volokh explains why this court's thinking is contrary to Rule of Law:
So it seems to me that enforcing the contracts, if there are such contracts, is the best solution here. I’m not sure about “balancing” in the absence of contracts, especially when the things to be balanced are so subjective and hard to compare against each other; it would be better, I think, to have a clear rule up front and then have parties contract (or not) with an eye toward the rule. (Compare, for instance, the distribution of a person’s property when he dies. We generally enforce the will and, in the absence of a will, distribute according to a rigidly defined scheme, rather than “balancing” the prospective heirs’ interests in the property.)
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