Karla Dunston's former boyfriend, Jacob Szafranski, agreed to use his sperm to create embryos after Dunston was diagnosed with non-Hodgkin's lymphoma, treatment for which later left her infertile. However, after the relationship broke down, Szafranski said he no longer wanted the embryos to be used.
Despite a co-parenting agreement giving Dunston control over the embryos never being signed, the court held that oral agreements between the couple over the use of the embryos were valid and that, even so, Dunston's desire to use the embryos outweighed Szafranski's wishes not to become a father, reports the Chicago Tribune.
Judge Sophia Hall in the Cook County Court said: 'Dunston's desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs Szafranski's privacy concerns, which are now moot'.
Welcoming the decision, Dunston's lawyer, Abram Moore, told the Chicago Tribune: 'Using these pre-embryos is important to our client, but it is equally important to her to set a precedent in Illinois which helps other women cancer survivors who find themselves in this heart-wrenching situation'.
He assured the court that Dunston is not asking for any financial support from her ex-boyfriend. Szafranski said that the case is not about money, however, and he did not envisage bringing his own child into the world against his will.
'In reading the consent and deciding to go ahead with everything, I really thought that was what my understanding of the situation was, that my consent was needed at the time of their use. Life changes, your feelings on things change, your position on the world changes’, Szafranski told NBC Chicago.
The case was first heard by Judge Hall in the Cook County Court in 2012, who ruled in favour of Dunston. Szafranski appealed the decision and the Illinois State Supreme Court last year sent the case back to be reheard (reported in BioNews 724). The Appellate Court endorsed a 'contractual approach', adding that in the absence of such an agreement then the relative interests of the parties must be weighted.
Szafranski's lawyer, Brian Schroeder, said he intends to appeal the court's ruling, which could take 'four to eight months'. During that time both parties have agreed not to attempt to implant the embryos.
The Daily Mail says that the decision sets a new precedent in Illinois but that some other states have already decided on similar issues, leading to different outcomes.