Disposition of Frozen Embryos is Governed by Contract

Although the Illinois Supreme Court accepts only 4% of the Petitions for Leave to Appeal filed by parties unhappyCryopreservation with their outcomes in the Illinois Appellate Court, many family law observers believed that one recent decision would likely beat the odds and be accepted by Illinois’ highest tribunal for review.

That case, Szafranski v. Dunston, 2013 IL App (1st) 122975 – perhaps more commonly-known as the “frozen embryos” case – has drawn nationwide attention as it not only addresses emerging, cutting-edge legal issues with respect to the use of reproductive technology, but it also has engendered emotionally – charged debate regarding fundamental questions concerning the creation of families and whether a person can change his or her mind about being a potential parent. Although the Appellate Court in Szafranski characterized its decision as “a case of first impression in Illinois” – criteria which usually unlock the door to review by the Illinois Supreme Court – that court denied the Petition for Leave to Appeal. The court’s action, therefore, leaves the decision of the Appellate Court intact, and it now stands as the law of Illinois on this issue.

The case revolved around a dispute between Jacob Szafranski (a nurse) and Karla Dunston (a doctor), who were in a romantic relationship when the events took place in 2010. After they had dated for five months, Karla was diagnosed with Non-Hodgkin’s lymphoma and was told that the required chemotherapy treatments would likely result in the loss of her fertility. Karla asked Jacob if he would donate his sperm for the purpose of creating, through in vitro fertilization, pre-embryos with her eggs. Jacob agreed.

The couple went to Northwestern Memorial Hospital for the procedure, and there signed an “Informed Consent for Assisted Reproduction.” This document stated that “[n]o use can be made of these embryos without the consent of both partners … in the event of divorce or dissolution of marriage or partnership, Northwestern Medical Facility Foundation’s Division of Reproductive Endocrinology and Infertility will abide by the terms of the court decree or settlement agreement regarding the ownership and/or other rights to the embryos.”

On that same day, the couple also visited a lawyer to discuss the legal implications of creating pre-embryos. The lawyer presented them with a co-parent agreement, which stated that Jacob, as the father, “agrees to undertake all legal, custodial, and other obligations to the child regardless of any change of circumstance between the parties.” The agreement further provided that any eggs retrieved were to be under Karla’s sole control and, if the intended parents were to separate, Karla would control the disposition of the pre-embryos, including using them to have a child. The parties, however, never signed this agreement.

In April 2010, Jacob deposited sperm and eight eggs were retrieved from Karla. All eight were fertilized. The next day, Karla began her chemotherapy treatment. In May 2010, Jacob sent a text message to Karla ending their relationship. In August 2011, he filed a complaint in the Circuit Court of Cook County to permanently enjoin Karla from using the pre-embryos to “preserv[e] his right to not forcibly father a child against his will.” Karla filed a counterclaim seeking a declaratory judgment granting her sole custody and control over the pre-embryos and the right to use them to bear children. She also alleged breach of contract and requested specific performance of the parties’ agreement.

Discovery ensured, and, thereafter, the parties filed cross-motions for summary judgment. The trial court granted Karla full custody and control of the disputed pre-embryos. Jacob appealed, arguing issues of both constitutional and contract law.

The Illinois Appellate Court framed the issue as “who controls the disposition of cryopreserved pre-embryos,” and, noting the lack of precedent under Illinois law, surveyed decisions in other jurisdictions. The court determined that there are three types of analysis used in deciding such cases: (1) the “contractual approach,” which is used by five states and holds that courts will enforce contracts governing the disposition of pre-embryos so long as the contracts do not violate public policy; (2) the “contemporaneous mutual consent approach,” which has been used by one state and holds that nothing should be done with the embryos unless both parties agree to their disposition; and (3) the “balancing approach,” which has been used in three states and weighs the competing interest of both parties in the absence of an agreement.

The Illinois Appellate Court chose to join the majority view and adopt the contractual approach for Illinois, explaining that it was the best analysis for resolving these disputes as it “honor[s] the parties’ own mutually expressed intent as set forth in their prior agreements.” Thus, the court held that these agreements “should generally be presumed valid and binding, and enforced in any dispute.” The court reasoned that this approach was best because it allows the parties “to make their own reproductive choices while also providing a measure of certainty necessary to proper family planning,” and held that honoring such agreements “will promote serious discussions between the parties prior to participating in in vitro fertilization regarding their desires, intentions and concerns.” The court noted that if a party changes their mind regarding parenthood during this process, “this concern can be adequately addressed in the contract and should be discussed in advance of the procedure.”

Having decided this issue of law, the appellate court then sent the case back to the circuit court to apply this new rule to the facts presented. The Appellate Court vacated the entry of summary judgment in favor of Karla and remanded the case to the circuit court with directions to apply the “contractual approach” to any facts previously adduced and to any facts the parties wish to present on remand. The Appellate Court retained jurisdiction over this matter and instructed that all additional litigation in the lower court be concluded within 180 days of the issuance of the mandate.

This ruling squarely impacts the rapidly-growing number of people turning to in vitro fertilization and similar reproductive technologies to begin their families. The numbers tell the story: according to the American Society for Reproductive Medicine, in 1985, 260 babies were born through assisted reproductive technology; in 2010, the number topped 61,000.

The court’s decision in Szafranski establishes that it is the law of Illinois that courts will presume contracts governing the disposition of pre-embyos which were executed at the time of in vitro fertilization to be valid and binding, and will enforce them as long as they do not violate public policy.

Thus, parties considering in vitro fertilization where pre-embryos will be cryopreserved must take ample time to carefully think through the possible contingencies and outcomes, and set forth their intent with specificity in writing. In these personal matters of reproductive choice, special care must be given in deciding the future course of action to be taken with regard to the pre-embryos, so as to accurately reflect the agreement of the parties and avoid future costly litigation. Particular attention should be afforded to what will happen if one party – as was the case in Szafranski – changes his or her mind about being a parent.

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