US court grants woman right to disputed frozen embryos

An Illinois appeals court has reaffirmed a decision to grant a woman 'custody and control' of frozen embryos created with the sperm of her ex-boyfriend, despite his objections, giving her the right to use them to have children. 

The embryos were created five years ago when Karla Dunston and Jacob Szafranski - then a couple - agreed to create embryos for cryopreservation using Dunston's eggs and Szafranski's sperm. Dunston had been diagnosed with lymphoma, treatment for which often results in infertility.

As fewer eggs were retrieved than expected, their doctor recommended fertilising all eight eggs, rather than storing some of them unfertilised, which would have provided an option of using alternative sperm at a later date.

However, shortly after the procedure the relationship ended, and the couple disagreed on whether Dunston could use the embryos. Szafranski started legal proceedings to prevent the use of the embryos in 2011, but an Illinois county awarded Dunston sole custody and control because it found her interests in using the embryos outweighed Szafranski's objections to their use.

An appeal of the decision resulted in the appeals court sending the case back to the lower court, which again ruled in 2014 in favour of Dunston (reported in BioNews 724 and 755).

The most recent ruling from the Illinois Appellate Court upheld this decision, finding that there was a pre-existing oral agreement between the couple. Although a co-parenting agreement drafted at the time to clarify Szafranski's role was never signed, the court ruled that they had formed an oral contract. It also held that Dunston's interests prevailed, as the embryos are her only chance to have a biologically related child.

Delivering the judgment of the court, Justice Liu said: 'The sole purpose for using Jacob's sperm to fertilise Karla's last viable eggs was to preserve her ability to have a biological child in the future at some point after her chemotherapy treatment ended. The parties both recognised this when they agreed to create the pre-embryos together.'

A document signed at the clinic prior to creating the embryos stipulating that they could not be used without the consent of both partners was held to only prevent the fertility clinic taking action without both parties consent, and was not part of the contract between the couple.

Abram Moore, Dunston's lawyer, said that she was not seeking financial support from Szafranski.

'After winning a tough battle with cancer, these three embryos represent Dunston's last chance to have children that share her genetic material,' he said. 'Szafranski agreed to create these embryos for one purpose: so that Dunston could use them to attempt to have children if she survived cancer.'

Brian Schroeder, Szafranski's lawyer, told the New York Times, 'This case raises fundamental issues about the need to have both parties consent to the use of embryos to create human life.'

'No one should be forced into parenthood if that is not something they want. We believe consent should be required in order to procreate.'

The ruling could set a precedent for future legal disputes over the use of stored embryos in the USA. Szafranski will now seek to appeal the ruling at the Illinois Supreme Court.