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Illinois Judge Rules Against Ex-Boyfriend In Embryo Custody Case

Dr. Karla Dunston

Last September we blogged about a case involving an estranged Illinois couple who were battling in court over disposition of their frozen embryos which were created before they separated. On Friday, a Cook County Judge found in favor of the prospective mother (a cancer survivor who lost her ability to create new embryos as a result of her treatment), ordering that custody of the embryos be transferred to her over the objection of her former boyfriend.

While this case certainly touches a number of hot-button issues, ultimately I agree with the court’s ruling that the procreative rights of Dr. Dunston trumps the privacy interests of Mr. Szafranski – particularly given his post-donation conduct. While I certainly understand the objection to compelling a person to become a father against his wishes, if you balance the equities based upon the factual findings of the court, then certainly this ruling is justifiable.

Keep in mind that this case presented a very specific set of facts so the precedential value of this opinion may ultimately be limited. Among other things, Mr. Szafranski had previously agreed to allow his ex-girlfriend to use the embryos after they broke up and Dr. Dunston’s medical history prevents her from creating new embryos genetically related to her.

As we mentioned in our previous blog entry, this case is a perfect example of why everyone proceeding with IVF ought to have a Reproductive Estate Plan in place. You can read more here:

In 2009, Karla Dunston, a doctor who lives in the city, began dating Jacob Szafranski, a 32-year-old firefighter, paramedic and nurse from Elgin. A few months into their relationship Dunston was diagnosed with lymphoma and had to undergo chemotherapy that would ultimately destroy her fertility. She testified that she longed to have a biological child and asked Szafranski to provide his sperm so embryos could be frozen prior to her treatment, and he did so, despite neither of them thinking the relationship had long-term prospects. A co-parent agreement giving Dunston control of the embryos was never signed, though.

The couple broke up in May 2010. Szafranski said he changed his mind about being a father after friends and a girlfriend reacted negatively, according to court documents.

Judge Sophia H. Hall said this morning in a written ruling that oral agreements between Szafranski and Dunston concerning use of the embryos stand and added that Dunston’s desire to have a child outweighs Szafranski’s desire to not procreate. “Karla’s desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs Jacob’s privacy concerns, which are now moot,” the judge said in the ruling, “and his speculative concern that he might not find love with a woman because he unhesitatingly agreed to help give Karla her last opportunity to fulfill her wish to have a biological child.”

Dunston’s attorney Abram Moore applauded the ruling. “Using these pre-embyros 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 said in an e-mail.

Szafranski’s attorney Brian Schroeder said they plan to appeal the decision. “We’re obviously very unhappy,” he said.

Schroeder said lawyers for both parties have agreed that the embryos should not be implanted in Dunston until the appeal is completed. Through an attorney, Dunston has previously said she was not seeking any support, financial or otherwise, from Szafranski.


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