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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What Happens to Cryopreserved Embryos After A Divorce?

In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

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