Who Gets the Pre-Embryo?

Published in Chicago Lawyer Magazine, April 2014
by Daniel R. Stefani

With the advance of technology comes new and interesting issues. For a while now, couples can freeze and use the male’s sperm and the female’s eggs to create pre-embryos. The eggs are fertilized in vitro and then the pre-embryos are frozen for potential impregnation in the egg donor or some third party. The issue resulting from creating frozen pre-embryos is who controls the disposition of cryopreserved pre-embryos when and if the couple decides to split up. In June 2013, the Appellate Court of Illinois, First District decided a case dealing with frozen embryos and the disposition of same.

In Szafranski v. Dunston, an unmarried couple decided to create pre-embryos with Szafranski’s sperm and Dunston’s eggs. Dunston was diagnosed with cancer and her doctor advised that the chemotherapy would likely cause the loss of her fertility. As such, she and Szafranski agreed to create a pre-embryo in vitro and thereafter cryopreserve those embryos. In April 2010, Szafranski deposited sperm and eight eggs were retrieved from Dunston. The couple agreed to fertilize all eight eggs and ultimately three of the pre-embryos survived to viability. The next day, Dunston began her chemotherapy treatment. A month later, Szafranski advised Dunston that he wished to end their relationship.

Approximately, a year and a half later Szafranski filed a complaint in the Circuit Court of Cook County seeking to permanently enjoin Dunston from using the pre-embryos so as to preserve his right to not forcibly father a child against his will. Dunston counter-sued seeking declaratory judgment granting her sole custody and control of 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 and also sought relief under the theory of promissory estoppel.

The trial court granted Dunston full custody and control of the pre-embryos, granting her Motion for Summary Judgment. Szafranski appealed.

The couple signed a written informed consent that in part stated: “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 will abide by the terms of the court decree or settlement agreement regarding the ownership regarding the ownership and/or rights to the embryos.” The consent went on to urge the parties to consult with a lawyer who is experienced in the areas of reproductive law and embryo cryopreservation and disposition of embryos.

The couple met with an attorney who gave them two options. One was to sign a co-parenting agreement and the other was to sign a sperm donor agreement. The parties decided to use the co-parenting agreement which in part stated: “Any eggs retrieved and cryopreserved as a result of this in vitro fertilization retrieval shall be under Dunston’s sole control and that should the intended parents separate, Dunston will control the disposition of the pre-embryos”. The co-parenting agreement further provided “Jacob acknowledges and agrees that Karla is likely to be unable to create new healthy embryos subsequent to the chemotherapy regiment she will undergo and Jacob specifically agrees that Karla should have the opportunity to use such embryos to have a child. The aforementioned co-parenting agreement was never actually signed by the parties.

The Appellate Court set forth a detailed analysis of the three different ways that courts have interpreted this issue. Specifically, courts in other jurisdictions with similar issues have applied three types of analysis when resolving the issue, namely, a contractual approach, contemporaneous mutual consent approach and a balancing approach. The first approach guides the courts to enforce contracts governing the disposition of pre-embryos which were entered into at the time of the in vitro fertilization so long as they do not violate public policy. The second approach states: “No embryo should be used by either partner, donated to another patient, used in research or destroyed without the contemporaneous mutual consent of the couple that created the embryo.” Under this approach, advanced instructions would not be treated as binding contracts. The third approach is known as the balancing approach. Under such approach, the court weighs the competing interests of both parties.

The Illinois Appellate Court held that the right to use pre-embryos is determined by a contract approach for unmarried couples. Where there has been no advanced agreement regarding the disposition of the pre-embryos, then the relative interests of the parties in using or not using the pre-embryos must be weighed by a balancing approach.

Under the fallback balance approach, ordinarily the party wishing to avoid procreation should prevail, assuming the other party has a reasonable possibility of achieving parenthood by means other than the use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends to merely donate them to another couple, the objecting party has the greater interest and should prevail.

Given this case, it is extremely important that the parties retain counsel and negotiate a written agreement at the time of fertilization and preservation, considering all of the contingencies, knowing they cannot change their minds later.