The Illinois Appellate Court has upheld the dismissal of a lawsuit brought by Andrea Miller against Fertility Centers of Illinois (FCI), Dr. Brian Kaplan, and several cryogenic storage companies. Ms. Miller sued after a legal battle with her ex-husband over the custody of cryogenically frozen embryos, claiming the clinic failed to provide adequate documentation to protect her rights in the event of divorce. The Appellate Court found that the claims for negligence, breach of contract, breach of fiduciary duty, and medical battery were insufficient as a matter of law.
The Core Dispute: Consent Forms and Divorce
The case centers on consent forms signed in 2018 regarding Ms. Miller’s fertility treatments and the disposition of embryos created using assisted reproductive technology (ART). Ms. Miller initially underwent egg retrieval and freezing in 2014. In 2018, she and her then-husband, Robert Lyons, decided on an In Vitro Fertilization (IVF) cycle.
The IVF consent form they signed included provisions for the disposition of frozen embryos. Critically, the section addressing “Divorce or Dissolution of Relationship” had a box checked granting the embryos to Ms. Miller for any purpose, including implantation or destruction. This form was signed on August 2, 2018.
Later that year, a second IVF cycle yielded two viable embryos. Ms. Miller alleged that FCI informed her that only one consent form was necessary for her continued treatment and that no subsequent form was signed for the embryos resulting from this second cycle.
When Ms. Miller and Mr. Lyons separated in early 2019, the dispute over the embryos began. Mr. Lyons refused consent for Ms. Miller to use the embryos. The core of Ms. Miller’s subsequent lawsuit stemmed from the fact that the judge in her divorce proceedings ultimately ruled that the 2018 consent form only applied to the first IVF cycle and did not cover the embryos from the December 2018 cycle. This ruling forced Ms. Miller to incur significant legal expenses to establish her sole custody, which she later secured in September 2022.
Negligence Claims Fail: The Impossibility of Immunity
Ms. Miller argued that FCI and Dr. Kaplan were negligent for failing to draft a consent form that explicitly covered all subsequent IVF cycles or provided sufficient protection against legal challenges in the event of a divorce. She also brought negligence claims against the cryogenic defendants (aParent IVF International, Gamete Resources Inc., and Cryovault, Inc.) under an agency theory.
Justice Mikva, writing for the Fifth Division of the Appellate Court, rejected the negligence claims. To prove negligence, a plaintiff must show duty, breach, and causation. The court focused heavily on the scope of the duty owed by the fertility clinic.
The court noted that the alleged injury was not the final loss of the embryos—since the divorce court ultimately awarded them to her—but the delay and expense incurred establishing her rights. The court found that imposing a duty on the clinic to draft a consent form that would make Ms. Miller “impervious to legal challenge” was an impossibly high standard.
Citing precedent, the court stated that imposing such an exacting duty does not comport with recognized legal standards. Furthermore, the court referenced case law from other states suggesting that the primary responsibility for protecting interests in embryos remains with the progenitors (the patients), not the fertility centers drafting standardized forms.
Regarding the cryogenic defendants, the court found they could not be liable for negligence because Ms. Miller failed to allege they participated in drafting the consent form or contributed to the risk of harm arising from her husband’s challenge.
Breach of Contract: Lack of an Express Promise
Ms. Miller’s breach of contract claims against FCI hinged on the argument that the consent form, combined with an alleged oral representation by an FCI nurse that the form “would ensure that Plaintiff was the owner of the embryos in the event of a divorce,” constituted a binding contract.
The circuit court had previously given Ms. Miller a clear roadmap: to survive dismissal, she needed an “express allegation supported by sufficient facts that any Defendant expressly promised to provide [Ms. Miller] with a consent form that would preclude and/or prevent subsequent litigation on the issue of disposition of the embryos.”
The Appellate Court found that even the nurse’s alleged statement, while potentially binding FCI, did not rise to the level of promising to prevent future litigation entirely. The contract language, even if assumed to cover the second IVF cycle, only dictated disposition *upon* divorce, not how to defend against a challenge *during* separation proceedings. Because no alleged promise guaranteed immunity from legal contest, the breach of contract claim failed.
Duplicative Fiduciary Duty and Medical Battery
The breach of fiduciary duty claims against FCI, Dr. Kaplan, and the cryogenic defendants were dismissed primarily because they were deemed duplicative of the negligence claims. The court reiterated that when the operative facts and alleged injury are identical to a negligence claim—here, the provision of an allegedly insufficient consent form resulting in litigation delay—the fiduciary duty claim must be dismissed. Furthermore, the court noted that fiduciary duty claims usually require an allegation that the fiduciary sought a “selfish benefit,” which was absent here.
Finally, the medical battery claim against Dr. Kaplan was dismissed. Battery requires a procedure performed without consent or substantially at variance with the consent granted. Since the divorce court ultimately awarded custody to Ms. Miller as the consent form prescribed, the court found no substantial variance. The alleged defect—that the form did not adequately warn her of potential litigation—was an issue of inadequate *informed consent* (a negligence matter), not a true battery claim.
The Appellate Court concluded that the circuit court correctly dismissed all counts with prejudice, and the subsequent denial of Ms. Miller’s motion to reconsider was also affirmed.