Damn The Contract, I Want To Use The Embryos

The Sofia Vergara / Nick Loeb fight over the frozen embryos they created has cast a public eye onCryopreservation very personal issues.  While their case is only beginning, I represent someone in Illinois who has been involved in the exact same fight for nearly five years, and who has already made the arguments Sofia will be making.  I argued this case in the appellate court last December, and a decision could be issued any day.  The issue in both cases is the same:  When two people sign a contract that states they both must consent to any use of the embryos, can the contract be cast aside when one person wants to use the embryos but the other does not?

The Illinois case is Szafranski v Dunston.  I represent Jacob Szafranski, who presently does not consent to his former girlfriend, Karla Dunston, using embryos they created after Karla was diagnosed with cancer.  They signed a contract that stated “no use of the embryos can be made without the consent of both partners.”  The embryos were created twelve days later.  Karla had planned to freeze unfertilized eggs and fertilized embryos, but because fewer eggs were retrieved than expected, all eggs were fertilized.  Jacob’s position is the contract must be honored and his consent therefore is needed to use the embryos.  Karla is taking the position that the embryos are her last and only chance to have biological children, and because Jacob knew this when the embryos were created, she should be allowed to use them.

So who wins?  Jacob and Karla signed the contract with their eyes open, knowing its terms.  It is not Karla’s fault only a small number of eggs were retrieved, but it is not Jacob’s fault either.  They both knew Jacob’s consent was needed to use any embryos, and they proceeded to create the embryos.  In the course of representing Jacob I found an Illinois case that states “parties are entitled to enforce the terms of their negotiated contracts to the letter without being mulcted for lack of good faith.”  Mulcted is an unusual word so I had to look it up, and it means “to take something from another person by means of unseemly or deceptive methods.”  In other words, Jacob is entitled to hold Karla to the contract they freely entered into, and Jacob is not being deceitful or immoral in doing this.

This is easier said than done, as the stakes are literally life itself.  Jacob and I feel for Karla, but there is no King Solomon style solution to this dispute.  And there are two sides to every story.  If Jacob has the legal right to hold Karla to the terms of the contract they both signed, then that right has to be respected.  In the eyes of the law, though not having Jacob’s consent to use the embryos is emotionally painful to Karla, it is not a valid reason to ignore the contract they both signed.

The same is true for Sofia and Nick.  As has been reported, they signed a contract that states both must consent to any use of the embryos they created.  Because Sofia is a celebrity, her case has garnered huge media attention.  My client Jacob is not a celebrity but he has walked the path Sofia is now on.  The point is this can happen to anybody.  The beauty (or curse) of the law is that it is blind to status and personal circumstance. The law serves as objective mediator in all cases, and especially those that are riddled with emotion and deeply held feelings. While the inconsistency of life can create a fog, a contract creates clarity. It is said that hard cases make for bad law. However, I would say that hard cases test the law.  Jacob’s case, and Sofia’s case, are two such tests.

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Brian A. Schroeder

About Brian A. Schroeder

Brian A. Schroeder is an accomplished appellate attorney with over 20 years of experience. He brings to every case strong analytical skills, powerful advocacy, and a genuine concern for his clients. Mr. Schroeder has argued cases before the Illinois Supreme Court, all five Districts of the Illinois Appellate Court, and the United States Court of Appeals for the Seventh Circuit.

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