On The Custody of Cryopreserved Embryos

By:  Timothy P. Flynn

Now here's a sticky one.  What does an unmarried couple do with their fertilized and cryopreserved embryos when they break-up?

That was the question of first impression posed to a panel of the Illinois Court of Appeal's Second Division in Jacob Szafranski vs Karla Dunston.  The in vitro fertilization case from Chicago involves the custody of frozen pre-embryos [female ova fertilized by male sperm] following dissolution of the progenitors' relationship.

In the spring of 2010, Ms. Dunston was being treated for cancer via chemotherapy, which jeopardized her fertility.  As a result, Dunston requested that Szafranski, with whom she was in a relationship, donate his sperm from which her ova could be fertilized.  He agreed and the IVF embryos were created and frozen.

Prior to this process, the couple executed the fertility center's standard "Informed Consent for Assisted Reproduction", and obtained [but did not execute] a separate "co-parent agreement" prepared by an attorney.  The former document acknowledged that the law regarding custody of the fertilized eggs is in flux; the latter document provided that Ms. Dunston would be granted custody of the eggs in the event the couple split-up.

Szafranski got cold feet right away and texted a break-up message to Dunston.  Not only were they through as a couple, he sued her for custody of the embryos in the Cook County Circuit Court claiming that he did not wish to be forced into fatherhood.  This draws her ire as well as a three-count counter claim seeking a declaratory judgment for sole custody and control over the embryos pursuant to the [unexecuted] co-parenting agreement contemplated by the parties.

The trial court judge awarded the fertilized eggs to girlfriend.  Boyfriend appealed the decision claiming his rights to privacy are implicated by any use of the embryos under the United States and the Illinois Constitutions.  He asserts that his privacy rights require his consent prior to any use of the embryos.

To reach its decision to reverse the trial court and remand the case for further evidentiary proceedings, the Illinois Court of Appeals first took a tour de force of our nation's common law regarding the three methods used to determine custody of cryopreserved embryos: the contractual approach; contemporaneous mutual consent; and the [always useful] balancing test.  In the end, the appellate court opted for the contractual approach when applicable and the balancing test in the absence of a contract.

Under the contractual approach, a majority of jurisdictions would honor and enforce the terms set forth in an assisted reproduction contract.  The mutual consent approach, on the other hand, provides for the possibility of one of the progenitors changing his or her mind regarding the ultimate use of the cells.  So far, only Iowa has adopted this method of embryo custody determination.

The balancing test approach is a hybrid, considering all the terms of the executed contract, if any, but also weighing the respective interests of the progenitors.

In this case, the appellate court wanted more information about the parties' intent and their agreement surrounding the IVF process that took place.  So the case has been remanded to the trial court for additional proceedings.  A careful read of this opinion has us thinking that the appellate court was looking for the assent of the parties, as expressed in a contract.

Who do you believe should have custody, possession and control over these frozen zygotes?  How do you think the courts in Illinois will ultimately decide this case?

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