Embryo Custody Dispute: Fertility Center Informed Consent Document is Not the Only Evidence of an Agreement as to Rights of the Parties

May 22, 2014
SmithAmundsen Health Care Alert

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Last week, an Illinois Judge ruled that a woman could use embryos created with her now ex-boyfriend, over the boyfriend's objections. In an ongoing battle now in its fourth year, Karla Dunston, a 42 year-old cancer survivor, rendered infertile by chemotherapy, has fought to obtain the right to use embryos created and frozen prior to cancer treatment with former boyfriend Jacob Szafranski. Szafranski disputed the use and believed his informed consent document signed at the fertility clinic afforded him the right of consent as to the future use of their embryos. Previously, the Illinois appellate court had ruled the lower court was to analyze the dispute based on the prior agreement of the parties creating the pre-embryos. After analyzing the evidence again in the trial court, the pre-embryos were awarded to Dunston. Szafranski and his attorneys have indicated they will appeal the ruling.

On May 19, 2014 Szafranski appeared on CNN, stating his belief that documents previously signed required his consent before any action could be taken. While he claimed he agreed Dunston could have his sperm to create embryos and agreed “….in part…” to use of the embryos by Dunston, the physician plan, prior to creating the embryos, was to harvest some unfertilized eggs to cryopreserve in addition to fertilized eggs. Szafranski claimed the plan was to “..make embryos and eggs…” Yet, according to Szafranski, when the physicians harvested the eggs, they were unable to harvest many and advised that all of the harvested eggs be fertilized.

Szafranski contends that the signed informed consent document provided by the fertility center indicating both of them were to agree to the use of the embryos, is evidence that they both have equal rights to the embryos. At the fertility center, physicians encouraged Dunston and Szafranski to seek legal advice. The court considered evidence that the parties had considered a sperm donor agreement and a co-parenting agreement. The co-parenting agreement was provided to Szafranski but he chose not to sign it. He also did not sign a sperm donor agreement. Both provided verbal testimony as to any agreement.

Practitioners in the fertility industry are interested in what the outcome will be to the appeal of this action. Practitioners need to remain mindful that signed informed consent documents will be part of the evidence presented in the event of an embryo custody dispute, but may or may not be determinative of the outcome as all evidence will be considered. In Illinois, where the court will look at evidence of the agreement of the parties prior to the creation of embryos, parties should consider each obtaining their own independent legal advice and obtaining mutually signed agreements as to the duties and obligations of each party, in addition to any informed consent documentation a clinic may provide.