IN 2010 Jacob Szafranski and Karla Dunston decided to undergo in vitro fertilisation
(IVF) to create and freeze embryos
together. After the couple broke up, Mr Szafranski sued Ms Dunston to prevent
her from using their three frozen embryos. Ms Dunston, rendered infertile from
chemotherapy treatments, filed a counterclaim seeking sole custody and control
over the embryos so that she may one day have children.
This month an Illinois
state appeals-court affirmed a circuit-court ruling in favour of Ms Dunston. Because the couple never
signed a contract specifying who controlled the embryos, the court found Mr
Szafranski agreed to allow Ms Dunston to have his child when he provided his
sperm to fertilise her egg.
“Had Jacob wanted to preserve his ability to later veto Karla's use of
the pre-embryos,” writes Justice Laura Liu, an appellate judge, “the time for
expressing that condition was when he accepted Karla's offer.
All he would have been required to say is: yes, he would donate his
sperm, but that he wanted Karla to seek his consent before attempting to use
any resulting pre-embryos.” But because Mr Szafranski never formally expressed
his reservations in advance, either orally or in writing, Ms Dunston was
entitled to have his child.
As couples increasingly seek medical help to solve fertility problems,
legal tussles over embryos will only become more common. If the Illinois ruling
survives an appeal to the state’s high court, it could set a precedent. If
partners fail to stipulate—either orally or in writing—what should happen to
their embryos in the event of a dispute, either party may later be allowed to
use the embryos over their partner’s objection.
Illinois is one of at least 14 states that have been asked to resolve
disputes over embryos. The most famous case so far is in California, where
earlier this year Nick Loeb, a businessman, sued Sofia Vergara, a Hollywood
actress and his ex-fiance, over the rights to frozen embryos they created
together. (The case is ongoing.) In deciding who gets custody, courts have been
weighing several factors. If both parties agree to a contract, this largely
dictates the outcome. In the event there is no contract, a court in Iowa ruled
that both parties must provide consent in the use of any embryo. Other courts
have considered the evidence under a “balancing-of-interests analysis”. Here
judges look at the facts of the case to determine who has the more compelling
argument, the partner who wants a child or the one who doesn’t.
Kim Mutcherson, who teaches “Bioethics, Babies & Babymaking” at
Rutgers School of Law-Camden, says that the Illinois ruling could set an
awkward precedent. She argues that because most people assume their embryos
will remain in a deep freeze if their relationship falls apart, a proper legal
default when there is no written contract would be to require mutual consent to
use an embryo. The ruling in Illinois, however, presumes that if you create an
embryo, you have also given your partner the right to use it unless you clearly
express otherwise. “I think the court gets it really wrong here,” Ms Mutcherson
says.
The Illinois Supreme Court may agree to take this case, so the fate of
the embryos created by Mr Szafranski and Ms Dunston remains uncertain.
Regardless of what happens, however, legal contracts are clearly a necessary
feature of any procedure involving the freezing of embryos. Many fertility
centres, such as the one visited by Mr Szafranski and Ms Dunston, advise their
patients to consult a lawyer. But only one of the six largest centres in the
Chicago area requires a contract between the couple in order to proceed with
IVF. Others
would be wise to follow suit.
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