According to the American Society for Reproductive Medicine In 2010, 61,000 babies were born through assisted reproductive technology; a few State higher courts have addressed what happens to the frozen embryos once a couple separates.
The Illinois court has ruled on an embryo case but the ruling still allows many of the issues to remain unresolved because Justice Patrick J. Quinn wrote that the trial court judge should have sought arguments and rendered an opinion on the validity of the first and second contracts rather than ruling on the arguments about the parties’ rights to become a parent.
The circumstances began in March 2010 when Karla Dunston was diagnosed with non-Hodgkin lymphoma and was told that treatment would likely leave her infertile. With her then boyfriend, Jacob Szafranski, they decided to attempt in vitro fertilization. Szafranski donated sperm samples and Dunston donated eggs on April 6, all of which were fertilized before the couple ended their relationship in May 2010. Both signed an agreement stating that, “[n]o use can be made of these embryos without the consent of both partners (if applicable).” A second agreement was drawn up several days later stating that Dunston would have sole control of the eggs and pre-embryos in case the two split up, and that Szafranski “agrees to undertake all legal, custodial, and other obligations to the [c]hild regardless of any change of circumstance between the [p]arties.” This second contract was never signed.
In 2011, Szafranski tried to stop Dunston from using the pre-embryos, arguing that he had a constitutional right not to father a child against his will.
Dunston argued that her ex-boyfriend was bound by the agreement terms because he had donated sperm, thereby performing his obligation and making her believe he was committed to the undertaking. She also argued that Szafranski had intended to sign the second contract giving her control of the pre-embryos but Szafranski disagreed with that, as well as the idea that his sperm donations made the agreement legitimate.
A Cook County trial court awarded the rights to the embryos to Dunston but Szafranski appealed. A higher court sent the case back, explaining that the case focuses on prior agreements rather than the interests of either party.
The case now concerns whether the pact occurred when Szafranski gave the sample or when they signed the medical consent form requiring joint consent for the use of the embryos.
A New York state couple froze embryos and signed an agreement stating they could only be used with the consent of both parties. The wife, who became infertile, requested sole custody of the embryos and the husband opposed her request. The Court of Appeals ruled that the contract should stand and the embryos were donated to research. Last year, a Pennsylvania appeals court gave frozen embryos to a woman who wanted to give birth even though her ex-husband wanted the embryos destroyed. Similar to Illinois case, the ex-wife was infertile following treatment for cancer. There, the court ruled that her desire to be a mother outweighed the man’s desire not to be a parent. Legal experts are watching to see how the Illinois court will resolve this issue.