Custody Disputes of the Future: Which Party is Entitled to the Control and Disposition of Cryopreserved Pre-Embryos?

BabyThe key Illinois case on the issue is Jacob Szafranski v. Karla Dunston. 2015 IL App (1st) 122975 (Szafranski II); 2013 IL App (1st) 122975 (Szafranski I).  The case has been up on appeal twice.  A brief background is as follows: in 2010, the parties entered into an agreement to undergo in vitro fertilization (IVF), hoping to create pre-embryos.  Karla had been recently diagnosed with lymphoma and was expected to be infertile after her chemotherapy treatment.  Three viable pre-embryos were created and frozen.  The couple’s relationship ended and Jacob sued Karla to enjoin her from using the pre-embryos; Karla filed a counterclaim seeking sole custody and control over the pre-embryos.  The trial court granted Karla sole custody of the pre-embryos and the right to use them to have children.

            In Szafranski I, the first time this case went up on appeal, the Illinois Appellate Court held that disputes over the control of pre-embryos created with one party’s sperm and the other party’s ova should be settled by: (1) honoring any advance agreement entered into by the parties, and (2) weighing the parties’ relative interests in using or not using the pre-embryos in the event there is no such agreement. 2013 IL App (1st) 122975.  The Appellate Court remanded the matter back to the trial court with directions to apply this hybrid approach to resolve the dispute.

The trial court held a two-day trial and again ruled in favor of Karla on both approach 1 and approach 2, as prescribed by the Appellate Court.

On appeal for a second time, in Szfranski II, the Illinois Appellate Court affirmed the trial court’s most recent ruling because it found that the evidence at trial supported the circuit court’s finding that the parties formed an oral contract on March 24, 2010, wherein they agreed to create the pre-embryos at issue so that Karla could have children after her fertility was diminished by chemotherapy.  The Appellate Court agreed that the parties signing of a medical informed consent document on March 25, 2010, did not modify the parties’ oral contract from the day before.  Lastly, the Appellate Court upheld that circuit court by ruling that it did not err when it found that Karla’s interests prevail over Jacob’s in this dispute because the pre-embryos represent the only and last opportunity for Karla to have a biological child.

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