In March 2009, in an ISBA Family Law Seminar, I spoke about frozen embryos in dissolution of marriage cases. At that time, there was no Illinois Appellate Court opinion on the subject. My materials can be found on the Schlesinger & Strauss, LLC. website, under Articles, click on Frozen Embryos.
Since that seminar, and those materials were prepared, the Appellate Court for Cook County decided a case dealing with frozen embryos. It is Szafranski v. Dunston, 2013 Il.App(1st) 122975. The case was decided in June and is in appeal from the Circuit Court of Cook County, Judge Sophia H. Hall.
In that case, the couple was never married. Mr. Szafranski’s sperm and Ms. Dunston’s eggs were utilized to create “pre-embryos”. The parties were in a relationship in 2010 but not married. Ms. Dunston was diagnosed with cancer and informed that her chemotherapy would cause the loss of fertility. She and Mr. Szafranski agreed to use in vitro fertilization.
The couple went to Northwestern University Medical facility in Chicago. They signed a document entitled Informed Consent for Assisted Reproduction. The contract says “No 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.”
The parties went to see a lawyer who gave them two options. One was a co-parent agreement and the other was a sperm donor agreement. The parties decided to use the co-parent agreement. In it, it says that 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 are to be under Karla’s sole control and that should the intented parents separate, Karla will control the disposition of the pre-embryos. Unfortunately, that agreement was never signed by the parties.
On April 6, 2010, Jacob deposited sperm and eight eggs were retrieved from Karla. All eight were fertilized. The next day, Karla began her chemotherapy. In May 2010, Jacob sent a text message to Karla ending their relationship. In August of 2011 he filed a complaint in the Circuit Court of Cook County to permanently enjoin her from using the pre-embryos.
Discovery was had. The parties filed cross-motions for summary judgment. Judge Hall granted Karla full custody and control of the disputed pre-embryos. Jacob’s motion for summary judgment was denied. He appealed.
As I said in my previous article, the courts in every other state that have considered this issue have determined that the contract in which both signatures are required to do anything with the pre-embryos is binding. If there was no such contract, the courts in other states have held that the two parties must agree before anything is done with the embryos such as donation, implantation in one of the parties, or destruction.
The Appellate Court for the First District Second Division, in this case, went through an exhaustive study of the law of this area in other states citing the cases I cited in my first article plus additional cases since that time. The Appellate Court acknowledged that this was a matter of first impression in Illinois. There are three approaches to utilize. One is the contractual approach in which the contract controls. Five states have upheld that, New York, Oregon, Tennessee, Texas, and Washington.
The second approach is called the contemporaneous mutual consent approach stating that nothing should be done with the embryos unless both parties agree. This approach is used in Iowa.
The third approach is the balancing approach which has been utilized in New Jersey, Pennsylvania and Tennessee. That approach weighs the competing interest of both parties. “None of these courts have awarded one party the right to implant pre-embryos in the face of a prior agreement stating that both parties’ consents were required to make use of the pre-embryos.” 2013 Il App(1st) 122975 at Paragraph 37.
The court then determined which is the proper approach to use in Illinois. In Paragraph 40 “…we believe the best approach for resolving disputes over the disposition of pre-embryos created by one party’s sperm and another party’s ova is to honor the parties’ own mutually expressed intent as set forth in their prior agreements. We therefore join those courts that have held that …” agreements between parties are generally to be presumed valid and binding, and enforced if there is any dispute between them.
Illinois then joins every other state which has looked at this issue in refusing to give one party the right to force parenthood on another or to give one party the right to destroy the embryos.
