Hundreds of thousands of frozen embryos are in storage across the nation, most left over from in vitro fertilization procedures.
In a closely watched, long-running dispute over who gets custody of frozen embryos when the man and woman who created them disagree, an appeals court in Chicago ruled 2-1 on Friday that a woman whose fertility was destroyed by cancer treatment could use embryos she created with her former boyfriend, over his objections.
The court ruled there had been an oral contract between the parties: Karla Dunston and Jacob Szafranski. “Karla asked if he would ‘be willing to provide sperm to make pre-embryos with her,’ ” the court wrote. “He responded, ‘Yes,’ telling Karla that he wanted to help her have a child.”
Szafranski plans to appeal the case to the state Supreme Court, said his lawyer, Brian Schroeder. They hope to establish that the decision to procreate is a fundamental human right that the courts should not impose on a man, any more than on a pregnant woman.
Hundreds of thousands of frozen embryos are in storage across the nation, most left over from in vitro fertilization procedures. When couples divorce or simply disagree about how many children they want, dealing with those embryos can lead to bitter disputes. Actress Sofia Vergara and ex-boyfriend Nick Loeb are having a public dispute over what to do with frozen embryos they made that he wants to give to a surrogate to carry.
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Where such cases have gone to court, the party that does not want the embryos used has usually been the winner. But there is little consistency among the states in how to resolve such cases.
In the Illinois case, Dunston, an emergency-room doctor who had been given a cancer diagnosis, asked Szafranski to contribute sperm to create embryos that could be used after her treatment. But Szafranski broke up with her while she was in treatment and denied her permission to use the embryos. She had promised not to seek money or other support from him to raise any child born from the embryos.
Dunston and Szafranski consulted a lawyer about contingency plans for the embryos, as the clinic they used had suggested, but they never signed the co-parenting agreement the lawyer drafted for them.
The lower court ruled in favor of Dunston, saying her interests in using the embryos outweighed Szafranski’s in not having them used. But an appeals court said that was the wrong standard and that the case should be decided by the advance agreement of the parties, or, if there was no prior agreement, by a balancing of their interests.
In the district court, the judge again awarded the embryos to Dunston, saying she and Szafranski had an oral contract to let her use them.
Szafranski again appealed. He was relying in part on a provision in the informed-consent form at the fertility clinic where the embryos were made, saying that “no use of the embryos can be made without consent of both partners (if applicable).”
The appeals court ruled, though, that the informed-consent document was not a contract between the parties but rather one that kept the fertility clinic from making any disposition of the embryos without both parties’ consent.
“These three embryos represent Dr. Dunston’s last chance to have children that share her genetic material,” said Abram Moore, Dunston’s lawyer, reacting to the court’s decision Friday. “Mr. Szafranski agreed to create these embryos for one purpose: so that Dr. Dunston could use them to attempt to have children if she survived cancer. In today’s decision, the appellate court affirmed that he should be held to his promise.”
Schroeder, Szafranski’s lawyer, said: “This case raises fundamental issues about the need to have both parties consent to the use of embryos to create human life. No one should be forced into parenthood if that is not something they want. We believe consent should be required in order to procreate, and we will appeal this verdict.”
While the case has been pending, Dunston, 43, has had a child using a donated embryo.
Szafranski, 33, a firefighter, paramedic and nurse, has testified that a relationship with another woman ended because of her discomfort over the possibility of his fathering Dunston’s child.