Will Contract Law Continue to be the Standard to Govern the Fate of Stored Embryos? Should Storage Risk Managers be Concerned?

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October 9, 2013
SmithAmundsen Health Care Alert

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Hospitals providing fertility preservation treatment to cancer patients and others have been subject to litigation when storage equipment fails. As SmithAmundsen has previously cautioned, hospitals that store embryos may find themselves holding embryos and may find their medical consent forms subject to judicial scrutiny.

Last week the Illinois Supreme Court denied a petition to reverse an earlier appellate court’s holding in Jacob Szafranski v. Karla Dunston No. 116385. The Court stated that honoring agreements between parties to in-vitro fertilization procedures allows the parties, instead of the court, to make their own reproductive choices and provides a measure of certainty for proper family planning. The appellate court stated that the concern that participants in IVF procedures could change their minds could be addressed in a contract and discussed in advance of the procedure. Further, it stated that honoring agreements should have the effect of promoting serious discussions between participants before participating in IVF.

On September 18, 2013 the Chicago Tribune published a front page headline entitled “Couple Battle Over Frozen Embryos.” In the article, the Tribune interviewed Jacob Szafranski about the dispute of the fate of the three frozen embryos created through in-vitro fertilization (IVF) procedures. The embryos were created with the sperm provided by Jacob Szafranski (Szafranski), ex-boyfriend of Karla Dunston (Dunston), and the eggs of Dunston, a female seeking to preserve her fertility before undergoing chemotherapy treatment for Hodgkin's Lymphoma. This was done on the advice of doctors. Dunston was not interviewed for the Tribune story; however, court documents cited in the article indicate she thought about using a sperm donor, but had trusted Szafranski, her boyfriend at the time, and someone she knew to be a wonderful person. In the Tribune, Szafranski claimed duress stating that at the time of the fertilization, he was trying to support Karla the best he could. Szafranski wanted the Illinois Supreme Court to determine that his claimed constitutional right not to procreate was being violated.

To make its decision, the trial court will look to determine if there was a contract between Szafranski and Dunston. If there is no agreement, the court will use the balancing of rights test proposed in Davis v. Davis 842 S.W.2d 588 (TN 1992). In that case, the court found stored embryos under Tennessee law were neither person nor property but entitled to special respect meaning the embryos fate belongs to the gamete (sperm and egg) providers. Since there was no legislative guidance, they then formulated a test that balanced the right to procreate or not procreate.

SmithAmundsen also released an alert on a similar case regarding a divorced couple whose custody dispute was brought before the Pennsylvania Superior Court in Reber v. Reiss (2012 PA. Super. 86). The Reber court found that a fertility clinic agreement to limit storage to three years was not an agreement between husband and wife for embryo destruction, and awarded 8-year-old frozen embryos to the 44-year-old cancer-surviving wife. The Pennsylvania court noted that Pennsylvania law was silent on the issue raised of “forced procreation” but found there was an implicit agreement to procreate when the husband agreed to undergo IVF, signed a consent form, provided sperm for the creation of pre-embryos (some call unimplanted embryos pre-embryos), and agreed to fertilization causing the pre-embryos to be created.

The legal solutions proposed to settle disputes on the embryos fate can vary depending on the state view of the legal status of the embryo as person, property, or special respect and state law. In Louisiana, the law allows the physician to be the custodian until transfer for hopeful implantation in a womb and destruction would not be permitted. Texas law allows consent to be withdrawn before “placement" of the embryo. (Tex. Fam. Code Ann. Sec. 160.706 9b) (Vernon 2011). Florida has decision making authority to be decided jointly by the commissioning couple (Fla. Stat. Ann. Sec. 742.17 (2)). Illinois is among the first states to draft a fetal homicide and battery law, but it has not drafted legislation on how embryo custody disputes should be resolved. The Illinois Abortion Act defines conception as occurring at fertilization. Illinois permits abortion and has a Gestational Surrogate Act allowing those women who have the embryo in their body the right to decide its fate. Some legal scholars argue a man loses his right not to procreate when coital conception occurs, so similarly when sperm is voluntarily contributed, a man has given up his right not to procreate.

Courts have also promoted the idea that there should be written agreements that cover what to do with the embryos in the event of death, divorce, or later disagreement. A reality is that in some states, the right to change one’s mind renders a contract unenforceable.

SmithAmundsen encourages risk managers to review their fertility consent forms and encourages patients to seek their own legal counsel for their estate planning before committing to IVF services.