Embryos and the law (Legal prophylactics)

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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