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Illinois courts consider embryo dispute

30 September 2013
Appeared in BioNews 724

A woman in the USA is embroiled in a legal battle with her former partner over the use of cryopreserved embryos.

Karla Dunston was diagnosed with non-Hodgkin's lymphoma in 2012. After she was informed that her chemotherapy treatment would likely result in a loss of fertility, Dunston decided to store embryos created using her own eggs and the sperm of her partner at the time, Jacob Szafranski, at Northwestern Hospital in Chicago. Dunston then later lost the ability to have her own biological children after the cancer treatment.

The couple signed an informed consent document that stated the embryos would not be used without the consent of both parties, but that in the event of the relationship breaking down the rights to the embryos would be a matter for settlement.  A co-parenting agreement that stipulated control over the embryos would reside with Dunston upon separation was never signed by the couple.

When the relationship broke down, Szafranski sought to enforce his rights over the embryos to prevent their use. In response, Dunston claimed sole custody and control over the embryos.

In September 2012, a circuit court gave judgment in Dunston's favour and ordered that she should have full custody and control of the embryos. However, Szafranski appealed, claiming that his rights of privacy and liberty under the US and Illinois constitutions required his consent to the use of the embryos.

The Illinois appellate court said the proper test to apply in a situation such as this was a contractual one – an approach which had already been endorsed in other US states.

'We believe that honouring the parties' agreements properly allows them, rather than the courts, to make their own reproductive choices while also provided a measure of certainty necessary to protect family planning', explained Justice Quinn. The judge also said that such agreements will 'promote serious discussions' between couples prior to undergoing IVF and embryo cryopreservation.

In the absence of such an agreement, then the relative interests of the parties must be weighted. It was not an 'ideal way' to resolve the dispute, Justice Quinn said, but it was preferable to giving an 'antagonised ex-spouse' the power to block the other's parentage.

However, Justice Quinn highlighted that no US court that had endorsed a balancing exercise had awarded one party the right to implant an embryo in face of an agreement that required both parties' consent.

The court decided to vacate the lower court's judgment and ordered it to reconsider the case to determine if Dunston and Szafranski had reached an agreement on the use of the embryos.

Contract Law to Govern Cryopreserved Embryos' Fate
SmithAmundsen |  27 October 2021
Doctor, 42, who froze embryos with boyfriend after she was diagnosed with cancer battles him in court after he dumps her and says he no longer wants children
Mail Online |  18 September 2013
Szafranski v. Dunston , 2013 IL App (1st) 122975
Illinois Official Reports |  27 October 2021
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The US Supreme Court has declined to hear a man's appeal against a ruling that gave his ex-partner a right to use embryos the couple had created together...
23 November 2015 - by Dr Julia Hill 
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29 June 2015 - by Dr Julia Hill 
An Illinois appeals court has reaffirmed a decision to grant a woman 'custody and control' of frozen embryos created with the sperm of her ex-boyfriend, despite his objections...
5 May 2015 - by Dr Victoria Burchell 
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17 May 2010 - by Peter D Sozou, Geraldine M Hartshorne and Sally Sheldon 
Embryos created by IVF can be cryopreserved (stored) for possible future use. All couples who have embryos stored in the UK are currently bound by law to a single form of agreement, allowing each genetic parent to withdraw consent at any time before the embryo is transferred. This article makes the case for allowing an alternative consent agreement...
17 May 2010 - by Dr Anna Smajdor 
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