Jacob Szafranski created the embryos with Karla Dunston five years ago, but the couple separated soon afterwards. Szafranski sought to prevent their use and started legal proceedings in 2011.
An Illinois county court heard the dispute twice, awarding Dunston control over the embryos on both occasions. The Illinois Appellate Court upheld the decision in June 2015, finding that there was a pre-existing oral agreement between the couple and that, in any event, Dunston's interests prevailed as the embryos represent her only chance to have a biologically related child (see BioNews 808).
The Chicago Daily Law Bulletin reports that Szafranski sought to take his appeal to the Supreme Court, asking the court to rule on his privacy rights under Roe v Wade in an attempt to formulate a constitutional right against 'forced parenthood'. The decision by the Supreme Court not to admit the petition brings an end to the long-running dispute.
Dunston's lawyer Abram Moore, a partner at K&L Gates LLP, said his client was 'ecstatic' but declined to say whether she would use the embryos to have a child. 'We appreciate the effort of the Illinois courts to wade through what is a difficult question,' he told the Chicago Daily Law Bulletin. 'We think they came to the right conclusion and did it in a rational way while being sympathetic to the positions of both parties.'
Brian Schroeder at Schiller, DuCanto & Fleck LLP, who represented Szafranski, told the same newspaper: 'We are disappointed in the decision. Other than that we have no comment.'
Some commentators have questioned the Illinois Appellate Court's precedent as not being realistic in expecting couples to contemplate break-up at a point when they are creating embryos together.
'It puts people who are trying to have babies using reproductive technology in a really awkward position,' said Kimberly Mutcherson, professor of bioethics at Rutgers Law School, also speaking to the Chicago Daily Law Bulletin.
Lawyer Candace O'Brien told the newspaper that the decision could also mean that in the absence of a written contract the Illinois courts could equate an agreement to create embryos with an agreement to create a child, and that fertility clinics could be exposed to litigation when disputes arise. 'A fertility clinic is going to be put in the position of saying, "We need a judicial determination of this,"' she said.
Actress Sofia Vergara is currently involved in litigation in the USA over whether he ex-boyfriend, Nick Loeb, is able to use embryos despite her objections (reported in BioNews 800).