Contract Law to Govern Cryopreserved Embryos' Fate

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June 21, 2013
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The fate of embryos created during IVF procedure will be controlled by Contract Law honoring the parties' mutually expressed intent as set forth in prior agreements and absent a prior agreement, the relative interests of the parties in using or not using the pre-embryos must be weighed.

In a case of first impression in Illinois, Jacob Szafranski v. Karla Dunston, 2013 IL App (1st) 122975, the court reviewed all the laws in other states on the issue of what standard is to be applied in determining who controls the disposition of embryos created by in-vitro fertilization (IVF) procedures. Plaintiff-appellant Szafranski sought to permanently enjoin Dunston, a woman he was formerly in a relationship with, from using IVF embryos created with his sperm and Dunston’s oocytes. Dunston had been diagnosed with non-hodgkins lymphoma and secured the agreement of Szafranski to donate his sperm for the purpose of creating embryos as she was likely to lose her fertility due to chemotherapy treatments. Szafranski deposited sperm and agreed that eight oocytes retrieved from Dunston could be fertilized with his sperm in IVF treatment upon the doctor’s advice that this was the best chance for Dunston to have a child. Three of the eight fertilized oocytes survived to be cryopreserved in storage tanks. In IVF procedures, the cryopreserved fertilized oocytes are stored for future medical procedures when the embryos are thawed and transferred to a womb, so that the embryos have the opportunity to implant, and to continue to develop. Evidence was produced that Dunston, following the IVF procedures to create the embryos/pre-embryos, (embryos created in IVF procedures out of the body are sometimes referred to as pre-embryos), lost the ability to conceive a child due to ovarian failure as a result of chemotherapy.

Szafranski and Dunston both signed an informed consent document at Northwestern Medical Faculty Foundation’s Division of Reproductive Endocrinology and Infertility (NMFF), which would not allow use of the embryos without the consent of both partners (if applicable). The consent form also reported that in the event of divorce, dissolution of marriage or partnership, NMFF would abide by a court decree or settlement agreement regarding ownership and/or other rights to the embryos. A disclaimer on the consent also reported, in part, that the law is or may be unsettled and NMFF was not providing legal advice. Therefore, they should not rely on legal advice from NMFF and they should consult with a lawyer experienced in the area of reproductive law, including disposition of embryos, individual or joint parental status or any other aspect of the consent.

Before the donation of any sperm or oocytes, and on the same day the parties were at NMFF, they both met with an attorney who provided them with two possible arrangements: a sperm donor agreement or a co-parent agreement. Four days later, Dunston emailed the attorney opting for the co-parent agreement which was sent by the attorney to both parties. The agreement was never signed. Eight days after first meeting with the attorney, Szafranski deposited sperm, and eggs were retrieved at NMFF. Both parties agreed to the fertilization of all eggs, and three pre-embryos survived to be cryopreserved and stored, while Dunston began her chemotherapy treatment.

The next month, Szafranski ended the relationship, and about 15 months later, he filed the complaint to enjoin use of the embryos to preserve his right not to forcibly father a child. Dunston counterclaimed for sole custody and control of the embryos, and also alleged breach of contract and requested specific performance of the parties’ agreement and sought relief under a theory of promissory estoppel.

The Illinois Appellate court wrote that honoring the parties’ agreement allows the parties, rather than the courts, to make their own reproductive choices while providing a measure of certainty for proper family planning. Further, the court noted that honoring such agreements will promote serious discussions between the parties prior to participating in IVF. The concern that couples can change their minds can be addressed in a contract and discussed in advance of the procedure.

While the court noted that in the absence of an agreement, the weighing of the interest of each party is not an ideal way to resolve the dispute, what is worse “is to give a possibly antagonized ex-spouse the power to either block parentage or name the price parentage will cost,” citing Mark P. Strassner, You Take the Embryos But I Get the House (and the business); Recent Trends in Awards Involving Embryos Upon Divorce, 57 Buff. L. Rev. 1159, 1210, (2009). Also, citing the seminal case of Davis v. Davis 842 S.W.2d 588 at 604 (Tenn. 1992), the court reported:

"Ordinarily the party wishing to avoid procreation should prevail, assuming that 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 a pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail."

In the current dispute the parties were sent back to the circuit court for the parties to present evidence to be tested under a contract analysis to determine if there was a prior agreement.

Centers providing IVF treatment and storage should be mindful that the documents signed by the parties to IVF procedures may be claimed as evidence of an agreement between the parties. The center in this case had a disclaimer that the informed consent document is not legal advice; the center, physicians and staff do not provide legal advice; and, that the parties should seek their own legal advice. Dunston argued that the informed consent document signed by herself and Szafranski relate to NMFF's policies on control of the pre-embryos, and that Szafranski had agreed to the subsequent co-parent agreement which he did not sign, but nonetheless provided his sperm for the purpose of creating the pre-embryos. All the specific contractual evidence will now be presented before the circuit court for a determination of the embryos' fate.