An embryo custody case that even Solomon couldn't resolve

Gary L. Schlesinger
Illinois Fellow
American Academy of Matrimonial Lawyers
October 2022

Our society strongly encourages the rights of both parents in raising a child. But what happens when that child is only a gleam in a lab technician's eye?

This question rests at the center of the Second District Illinois Appellate Court decision In Re the Marriage of Eneya Katsap and Alexander Katsap, which was decided in August 2022. It's the first Illinois case in several years to deal with embryos, and it cries out for clarification from the Illinois legislature.

The Katsaps were a married couple living in Israel, where they created embryos using in vitro fertilization in 2013. When they subsequently moved to upstate New York, they placed the frozen embryos in storage at the New England Fertility Institute in Connecticut. In 2015, they filed a contract with the institute stating that, if the parents were to divorce, Eneya would gain custody of the embryos.

The Katsaps became parents to a child using one of the embryos and a surrogate birth mother. Eneya—who is medically unable to bring a child to term— had planned to have another child via surrogacy. But in April 2020, Eneya took their child and moved to Naperville, where her parents lived, and then to Buffalo Grove; she did not inform Alexander of either location.

The couple soon separated and Eneya claimed the remaining embryos under the contract filed with the fertility institute. But Alexander denied signing that contract and testified that in the event of separation or divorce, they actually had agreed to donate the embryos. And in what had become an acrimonious dispute, he definitely did not want them going to his ex-wife.

The original trial court in DuPage County sided with Alexander, granting him "exclusive possession and control of the embryos." The Second District Appellate Court said, "Not so fast," and cited precedents for three methods in which courts have dealt with cases involving frozen embryos:

The court simply can enforce the original contract filed with the fertility institute, in this case giving the embryos to Eneya.
The parties can mutually consent to scrap the earlier contract and maintain the status quo, in this case leaving the embryos in storage.
The court, in the absence of an enforceable agreement, can use a balancing approach to weigh the separate parties' interest "in seeking or avoiding procreation."

In August 2022, the Appellate Court chose the third option, and applied a test to balance the rights and privileges of the former spouses. Relying on the only Illinois precedent for such a test, the Court gave the embryos to Eneya, deciding that her "interest in...procreation." This decision was colored by the fact that she cannot have children on her own (or even produce more eggs) and that the embryos represent her only chance at more offspring. In addition, these facts outweigh Alexander's interest in removing the embryos from her possession.

This raises a further question.

If the mother implants the embryo, is the sperm donor (Alexander) responsible for child support and other duties? Two Illinois statutes come into play here. The Appellate Court cited one of them, the Gestational Surrogacy Act, in concluding that the husband is not an “intended parent,” and thus not liable for support. As a gamete donor, however, he is indeed a parent under the Parentage Act, and thus liable for support—unless he reaches an agreement with Eneya relieving him of that responsibility.

Given the bitterness between these parties, such a compromise seems unlikely. And should Eneya herself decide to donate the embryos—and neglect to inform Alexander—how would he even learn if one of their children has been born?

A divorce already contains enough emotional issues; the presence of frozen embryos complicates things exponentially. The legislature must address the issues raised in this case via the Illinois Marriage and Dissolution of Marriage Act (IMDMA), as well as the Parentage and Surrogacy Acts. These are sturdy pieces of state law, in part because they remain flexible to amendment by the legislature. If nothing else, the details of the contract originally filed in Connecticut provide a cautionary tale for attorneys in Illinois and across the nation.

The Katsap case, now on its way to the Illinois Supreme Court, underscores the need for further clarification.

(The author has no involvement with the case described here.)

Gary Schlesinger

Reach him at glschles@aol.com and 847-680-4970.

In international family law, the Hague Convention helps navigate the course

Staci Balbirer
Illinois Fellow
American Academy of Matrimonial Lawyers
September 2022

I practice family law in Illinois. So why would a potential client call me from Ecuador?

He phoned because his wife had fled from Quito with their two children in the middle of the night and, after paying off guards at the Ecuador-Colombia border, smuggled them into Chicago.

It's hardly a situation that family law practitioners handle on a regular basis. But when we do receive a frantic international call, we need to know the right questions to ask when advising a prospective client, starting with: Is this a Hague Convention¹ case?

The Hague Convention ensures the prompt return of a child who has been wrongfully removed from a contracting state and dictates that rights of custody be exercised between all participating nations. It is part of the Hague Conference on Private International Law (HCCH). As of 2022, the HCCH counted 90 countries among its signees, as well as another 65 "connected parties" that operate in agreement with HCCH practices.

To determine if the Hague Convention comes into play, ask: Was the child removed from one of the Hague Convention's signatory countries?

If not, the conversation ends there; the Hague Convention would not apply. In this case, Ecuador had signed the Convention.

Then, continue with:

Were the children wrongfully removed? To determine that, we need to know what constitutes a wrongful removal under the Convention.²

Ecuadorian law requires either the consent of both parents or a Court order before the removal of minor children. The children for my case had both Ecuadorian passports—held by their father, an Ecuadorian citizen—and U.S. passports—;held by their mother, a U.S. citizen now living in Ecuador.

But because the mother had failed to get her children's U.S. passports stamped when they crossed the border from Ecuador into Colombia, we could argue that the children's mother had indeed wrongfully removed them.

We also provided the court with text messages showing that when the father asked to speak with their children, the mother refused, falsely claiming they were sick. When the father finally went to check on his two children, they and his wife were gone.

Having determined that the Hague Convention applies, we can drill down further: Does the potential client have visitation rights or actual custodial rights?³ And are the children "habitual residents" of the nations from which they were taken?⁴

So far, so good. The father indeed had custody rights under the Convention; and the children only had resided in Ecuador, confirmed by their school attendance records and doctors' appointments there. They unquestionably were "habitual residents" of Ecuador; and both were under 16, a further requirement for the Hague Convention to come into play.

One final consideration remained: How long have the wrongfully removed children resided in Illinois?

In this case, we filed for the children's return within three months of their removal from Ecuado—well within the one-year limit set by the Convention.⁵

In the U.S., Hague Convention cases can be filed in state or federal court; the choice usually comes down to docket traffic and deadlines. With all our ducks in a row, we made the decision to file in federal court, which redirected us to Illinois state court. Faced with lengthy delays there and in the best interests of the children, all parties chose to resolve the case out of court.

The father chose to move to the U.S. and enjoys co-parenting time with his kids. His decision was based on his belief that the children needed to have both parents nearby—complicated by the fact his wife's actions in wrongfully removing the children could subject her to criminal charges, and would deter her from ever travelling to Ecuador. Although he had a strong case to bring the children back to Ecuador, the father instead opted to serve the best interests of his offspring.

While this case did not go to trial, it provides a primer on how the Hague Convention works. In Illinois, family law practitioners' clients can extend significantly beyond the state line—or even the U.S. borders. As it turns out, future clients can live anywhere, even internationally. But you do have to know to ask the right questions.

For more information about Hague Convention provisions
¹ In 1980, the HCCH enacted the Hague Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention.
² Article 3 of the Hague Convention states that wrongful removal (or retention) of a child occurs when (a) it constitutes a breach of custody rights as recognized by the country where the child resided; and (b) when the applicant—the father, in this case—was actually exercising those rights at the time the child was removed (or would have exercised those rights "but for the removal or retention").
³ The Convention notes that "rights of access" include taking children from their home for a limited period of time (visitation rights); and "rights of custody" relate to an adult's care of the children—and particularly the right to determine their residence. In this case, the father was exercising his custody rights; if not, he would have no claim to bring his children home. (The definition of "rights of custody" varies among nations, making it essential to dive into the specific laws involved.)
⁴ The Convention does not define this term, but the U.S. Supreme Court has held that a child's habitual residence depends on a full understanding of the specific circumstances, as opposed to any actual agreement between parents on where to raise their child.
⁵ Article 12 of the Convention specifies that cases be filed within one year of the wrongful removal (although the article makes exceptions designed to prevent the "grave risk" of physical or psychological harm to the children).

Staci Balbirer

Reach her at sbalbirer@agdglaw.com or 312-755-3145.

Month: September 2022