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Assisted Reproduction

Man Wins a Round in ‘Pre-Embryo’ Dispute

I suppose this is what happens when a couple does NOT sign a contractual agreement. Why would they even have one drafted if they didn’t plan on signing it?

An Illinois man will have a second chance in court to gain control of fertilized eggs he created with his former girlfriend.

A three-judge state appeals court sided with Jacob Szafranski in his appeal of a Cook County Court ruling for his ex, Karla Dunston.

Dunston was diagnosed in March 2010 with non-Hodgkin’s lymphoma. She asked Szafranski to donate sperm to create pre-embryos with her eggs before she underwent chemotherapy. He said yes, according to the appeals court’s 31-page ruling.

After Jacob deposited his sperm, the couple met with a lawyer, who drafted a co-parent agreement, which stipulated that Szafranski would have legal obligations to the child, but Dunston would have control over the disposition of the pre-embryos.

The couple ahead with the fertilization process in April 2010, and three of the eight pre-embyros survived to viability.

However, the couple never signed the agreement.

One month later, Szafranski ended the relationship by sending Dunston a text. In August 2011, he filed for an injunction to keep Dunston from using the embryos, to “preserve (his) right not to forcibly father a child against his will.”

Dunston filed a countersuit for breach of contract, seeking declaratory judgment that she has sole custody of the pre-embryos and has the right to use them to bear children. She included a doctor’s letter stating that chemotherapy has caused her ovaries to fail.

The trial court ruled for Dunston, but stayed the order pending the results of Szafranski’s appeal.

The Elgin-based Second District Illinois Court of Appeals reversed, finding that Szafranski must prevail because the couple never signed the contract.

While this was a case of first impression, Judge Patrick J. Quinn noted that five states have decided similar cases by using a contractual approach, rather than one that requires the mutual consent of both parties (used in Iowa) or a balanced approach (in Tennessee and Pennsylvania).

“We believe that the best approach for resolving disputes over the disposition of pre-embryos created with one parties’ sperm and another parties’ ova is to honor the parties’ own mutually expressed intent as set forth in their prior agreements,” Quinn wrote.

“We believe that honoring parties’ agreements properly allows them, rather than the courts, to make their own reproductive choices while also providing a measure of certainty necessary to proper family planning. We also believe 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 appeals panel remanded for ruling on the contractual issue.


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