September 2014

Volume 37 Number 09 • chicagolawyermagazine.com

She wants a child.

He changed his mind.

There are hundreds of thousands of embryos frozen in America.

Eight are part of a dispute in Illinois that could answer a lingering question:

Who do they belong to?

Illinois is the 10th state to weigh in on legal disputes over the fate of frozen embryos. The nine other state courts have taken four basic approaches — and some have used more than one. Under a contractual approach, state courts agree to enforce contracts drawn up by the couple before the embryos were created. In the contemporaneous-mutual-consent approach, both parties must sign off on the embryos’ use. The balance-of-interests approach weighs each party’s reasons for wanting or not wanting a child. One state simply refuses to enforce contracts.

By Roy Strom arla Dunston started having trouble breathing in March 2010. An examination revealed the 38year-old doctor at St. Alexius Medical Center in Hoffman Estates had a tumor behind her breastbone. The diagnosis was non-Hodgkin lymphoma, a form of cancer that kills 30 percent of patients within five years of diagnosis. Given the size and location of the tumor, Dunston’s oncologist suggested she urgently begin chemotherapy treatment. The chemo would save her life, but it would also leave her infertile, robbing the never-married, childless doctor of her ability to have kids containing her genes. So she saw a specialist at Northwestern Memorial Hospital and postponed her cancer treatment in order to preserve her fertility. That same month, Dunston called paramedic Jacob Szafranski, a workplace acquaintance of almost 10 years and a romantic interest for the past five months. On a break at work, Szafranski ducked into a bathroom to take his girlfriend’s call. She asked. He agreed. Thirteen days later, using her eggs and his sperm, they created — then froze — embryos. About five months later, Szafranski sent her an e-mail. “In light of everything that has

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happened between us and now with the two of us moving in separate directions I cannot let you go ahead and use those embryos,” he wrote. Dunston replied, “I trusted you and now you are trying to take away my chance of having a biological child. … Those embryos mean everything to me and I will fight this to the bitter end.” Szafranski gave Dunston the hope of a child, but she now accuses him of robbing her of her only opportunity to mother a genetic child. Szafranski claims he always reserved the power to not be forced into fatherhood. Only one can win. The disagreement is emotionally supercharged: Dunston, now 43, at one point considered becoming a mother to a genetic child “the most important thing in my life,” according to court records. Szafranski fears being a genetic father of a child he will not raise, born to a woman he never loved, will “haunt me wherever I go.” He says the prospect alone has already cost him a relationship with another woman, one he said he was in love with. “Consenting to make embryos isn’t the same as consenting to use them in the future,” said Brian Schroeder, a partner at Schiller DuCanto & Fleck who represents Szafranski. “And because this is such a fundamental decision, the fact that things can change should be considered.”

Abe Moore, a K&L Gates partner who represents Dunston, said it’s “a case about fulfilling your word.” “If you promise something, live up to it,” he said. The embryos remain frozen as a legal case of first impression in Illinois awaits its second appeal, likely to be concluded by the end of the year. One question of Illinois law has been answered: How do you resolve disputes over the custody and control of embryos? Another question lingers, with the potential to reach the U.S. Supreme Court: Does a person have the right to not become a genetic parent against his or her will? Szafranski’s attorney poses that question a different way: When an embryo is outside of a woman’s body, should her partner have an equal right to what is, in effect, an abortion? 10 disputes, 10 different outcomes Since the first test-tube baby was born in this country in 1981, in vitro fertilization has exploded in popularity. The Society for Assisted Reproduction says 165,172 IVF procedures took place in 2012, resulting in 61,740 babies — both U.S. records. The number of frozen embryos (technically known as preembryos until they are implanted in a uterus) in storage continues to grow, as

well, with estimates ranging from hundreds of thousands to 1 million. While the growth of IVF has been rapid, comprehensive statutes on how to resolve the inevitable disputes that leave embryos only half-wanted are non-existent. Instead, courts in 10 states, Illinois being the latest, have had to make the rules. They have used four approaches. Three states use a so-called “balance-ofinterests test,” which seeks to weigh one partner’s desire to use the embryos against the other partner’s wishes not to. One state, Iowa, takes a “co-consent” approach: Both parties must sign off at the time the embryo is implanted in the woman. Five states say contracts, if they exist, are what will guide the outcome. Massachusetts is the lone state that refuses to enforce contracts. “As a matter of public policy,” the state’s high court

wrote in a 2000 case, “we conclude that forced procreation is not an area amenable to judicial enforcement.” Academics and judges can find at least one thing wrong with all of these approaches — and not just the fact that choosing an approach is largely the same as choosing an outcome in these cases. The balance-of-interests test, some argue, is arbitrary and imposing. Some judges fear the co-consent approach gives a jilted lover leverage to hold embryos hostage in divorce proceedings. And the popular contract approach — the one advocated by the American Medical Association — creates one of the thorniest issues: When can a person change his or her mind about becoming a parent? Liquid nitrogen isn’t a uterus. The biological clock isn’t ticking. Should that count for anything?

When Szafranski v. Dunston reached the Illinois Appellate Court, the justices created a hybrid approach. The court ruled any existing contract should decide the embryos’ fate, but in cases where no contract exists, the court should revert to the balance-of-interests test. And, the appellate court noted before it sent the case back to Cook County Circuit Court, a special interest exists when the embryos in dispute represent the last chance to procreate for one of the parties. None of the 10 cases and rulings have been exactly alike. Most couples were married, and most disputes were part of a divorce. Women typically wanted to use the embryos over their partners’ objections, but in at least one case, it was the man (who wanted to donate the embryos rather than destroy them). Sometimes, the women were fertile.

Contractual approach As part of a divorce proceeding, a New York court in 1998 enforced a couple’s informed consent agreement stating embryos be donated to research in the event of a custody dispute. In 2002, a Washington state court followed a married couple’s consent agreement in ordering pre-embryos they created using a donor’s eggs and the husband’s sperm to be thawed since they hadn’t been used in five years. A 2006 Texas ruling led to discarded embryos based on a divorcing couple’s consent agreement, and a 2008 Oregon court followed terms of a similar deal in giving control of a couple’s embryos to the woman, who had them destroyed.

Others, such as Dunston, were not. Few disputes involved a contract drawn up by more than one lawyer — which local attorneys said should have happened in the Illinois case. Most of the time, there was something called an “informed consent,” which some courts treat as a contract while others see it as only protecting the fertility clinic. In Szafranski v. Dunston, the informed consent’s controversial definition is just one of the reasons why the Illinois case may be the most complicated embryo dispute yet. A change in circumstance At Northwestern’s fertility clinic a day after that bathroom-break phone call, Dr. Ralph Kazer presented Szafranski and Dunston with an informed-consent document, which lays out the IVF procedure, risks and benefits. It’s clear what the document says, but its meaning is now up for debate. Because the procedure involves the potential for human life, the consent form asked Dunston and Szafranski some questions. For instance, what should happen to the embryos if they both die before they are used? (They decided to donate them to another couple.) The informed consent also contained one crucial, non-negotiated term: “No use can be made of these embryos without the consent of both partners (if applicable).” The couple signed the document. Szafranski provided sperm, and the couple left the clinic. At the doctor’s urging, they went to see an attorney to discuss the embryos’ legal situation, including what would happen to the embryos in any number of less-than-ideal scenarios. The same day the couple went to the law office of Nidhi Desai, a veteran reproductive rights lawyer who helped author Illinois’ Gestational Surrogacy Act of 2005. What happened in that meeting is not entirely clear, and its import is very much in dispute. Desai spoke with the couple for about an hour. In depositions, neither Dunston nor Szafranski seem to recall much detail about what was said. Desai testified the couple appeared “shell-shocked, just like everyone else going through this.” In an interview, Desai declined to discuss

Balancing approach Tennessee, 1992 The court said it would follow a contract over pre-embryos for a divorcing couple, but since none existed, it balanced the interests of the parties. The woman wanted to donate to another couple the pre-embryos she had created with her former husband. He did not want them to be used. The court ultimately concluded that the wife’s interest in donating the pre-embryos to another couple was not as significant as the husband’s interest in avoiding parenthood where “he would face a lifetime of either wondering about his parental status or knowing about his parental status but having no control over it.” New Jersey, 2001 A married couple signed a consent form that said the embryos would belong to the fertility clinic in the event of a divorce unless the court ordered they belonged to one of the parties. The court ordered the embryos be given to the woman, who wanted to destroy them. The man appealed, arguing that they should be given to another couple. The court said it would balance their interests, and because it was not the man’s last chance at becoming a parent, it would “not force [the wife] to become a biological parent against her will.” Pennsylvania, 2012 A married couple created frozen embryos after the wife was diagnosed with breast cancer. After the husband filed for divorce, the woman sought to have the embryos implanted. Because there was no contract in place, the court ruled the woman’s inability to have any other biological children was the deciding factor. “[B]ecause Husband and Wife never made an agreement prior to undergoing [in vitro fertilization], and these pre-embryos are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all, we agree with the trial court that the balancing of the interests tips in Wife’s favor,” a Pennsylvania Superior Court judge wrote.

the case but talked about the general process of counseling “fertility preservation” clients like Dunston. Because things are happening so quickly in those scenarios — first, a life-threatening diagnosis, then multiple decisions leading up to the creation of embryos — clients often have not considered the ramifications of a breakup, death or other major life change. “I unfortunately have the really lovely job of bringing up all those scenarios,” Desai said. “Because if everyone is together, there is no issue. The issue is going to arise if there’s a change in their circumstance.” Saving a woman’s fertility is first priority for these couples, she said. Bringing up the practical can be seen as pessimistic. “Everybody wants to help in these situations,” Desai said. Szafranski wanted to be helpful, too. So much so, in fact, that he overlooked personal differences with Dunston that he believed made the relationship unsustainable. Szafranski testified in a 2012 deposition that he was planning on breaking up with Dunston “during her diagnosis.” He eventually ended the relationship via text message the month after Dunston began her cancer treatment. His e-mail opposing her use of the embryos followed. Meanwhile, Dunston testified at court that she, too, only saw short-term prospects for their relationship. But she was uncomfortable with the idea of using a sperm donor, she testified, and she preferred to create embryos with a person she “considered a friend that I got along with, or else I would not have asked him to help me in my situation.” Two contracts, zero clarity The couple also decided that Szafranski’s sperm would be used to create embryos from only half of the eggs the fertility clinic harvested from Dunston. The other half would be frozen and inseminated later, using sperm from whoever Dunston might choose. It was part of her plan to separate her genetic lifeline from the whims of her boyfriend and her own uncertainty about their relationship. Desai presented the couple with two general options: They could sign a “co-

Contemporaneous-mutual-consent approach Iowa, 2003 A married couple signed an informed consent that stated they both would need to sign off on use of the embryos. Noting “grave public policy concerns,” the Iowa state court adopted the rule that both parties must agree to use the embryos at the time of implantation. “No embryo should be used by either partner, donated to another patient, used in research, or destroyed without the [contemporaneous] mutual consent of the couple that created the embryo,” the court wrote.

parenting” agreement, which would make Szafranski the legal father to any resulting baby. Or he could become a sperm donor — legally a stranger to their embryos and any child they turned into. Four days after leaving Desai’s office, Dunston e-mailed Desai and said the couple wanted to move forward with a coparenting agreement. The 15-page document Desai sent back described Dunston and Szafranski as “a committed couple who want to preserve the opportunity to parent a child together.” But there was another sentence that has come under closer scrutiny: “Should the intended parties separate, Karla will control the disposition of the preembryos.” The parties question how that sentence made its way into the contract. Desai’s notes from her meeting with the couple say: “So if split up, then become a sperm donor,” which would give Dunston control of the embryos. It also suggests the couple may have reached that decision at the meeting. But Szafranski insists the meeting with Desai only included “discussions.” Nothing

was agreed upon. Furthermore, Desai testified that her draft contracts are meant to be “looked over” by the parties, and the contracts are usually changed before they are signed and the IVF procedure takes place. That signature cements the couple’s intent, which Desai said courts look to “as some sort of vehicle for making decisions.” But a lot was happening in Dunston’s life in the 13 days between visiting the fertility clinic and creating the embryos. She saw her oncologist multiple times during that period, Dunston testified. Her tumor had grown. At one point, it restricted her ability to eat solid foods. She was making financial arrangements. Family members were coming to town. Treatments in advance of harvesting her eggs were ongoing. Szafranski was supposed to read the contract and tell her if he objected to anything, she testified. “He never mentioned that there was a problem with anything in the contract,” Dunston said in a deposition. “And so I went off of his word that this is something that we were going to go forward with.” Szafranski testified he didn’t sign the contract because the couple hadn’t

No enforcement Massachusetts, 2000 A couple signed a consent form which said if they divorce, the woman receives control of the pre-embryos. The Massachusetts Supreme Judicial Court was uncertain if the document actually indicated the intent of the parties. But even if it had, the state would not compel the man to become a parent against his will. “[E]ven had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen pre-embryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will,” the court wrote. “As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement.”

discussed it. He had never been asked if he had problems with it, he said, and he believed the couple was operating under the assumption in the informed consent that both sides had to sign off on eventually using the embryos. A final complication came on April 6, 2010, when Kazer was only able to harvest half the eggs he was expecting to collect from Dunston. Freezing unfertilized eggs, he told the couple, was riskier than freezing embryos. So another rushed decision had to be made: Fertilize all eight eggs or only half? In a matter of minutes, possibly seconds, the decision was made to fertilize all the harvested eggs with Szafranski’s sperm. And just like that, Dunston and Szafranski jumped into the Petri dish together, inextricably linking her desire to procreate with his opposition to fatherhood. Three rulings and no baby — yet When the case first went to the Daley Center and Cook County Circuit Judge Sophia Hall, she issued summary judgment in Dunston’s favor in September 2012. It was a case of first impression in Illinois, and there was no clear contract

between the parties to guide the judge. The “informed consent,” which would give Szafranski equal rights to the embryos, was seen as a contract between the couple and the clinic. The “co-parent agreement,” while a legal contract, was never signed and barely discussed. Hall accepted all of Dunston’s legal arguments, including the fact that this was her last chance to have a biological child, therefore her interest to procreate overruled Szafranski’s desire not to become a parent. Szafranski appealed. In a 31-page ruling written by the late justice Patrick J. Quinn, the 1st District Appellate Court reversed Hall’s ruling in June 2013, remanding the case with a new set of guidelines to consider: First, look to the contracts to determine the outcome. If there are no contracts in place, use the balancing approach. “Although we acknowledge that (the balancing approach) is not an ideal way to resolve a dispute implicating reproductive rights, we note that ‘what is even worse … is to give a possibly antagonized ex-spouse the power to either block parentage or to name the price that potential parentage will cost,’” Quinn wrote, citing a paper by Capital University Law School professor Mark P. Strasser, “You Take the Embryos

But I Get the House (and the Business).” While the ruling points out an imperfection of the balancing test, it also gave some guidance on how to apply it, citing a Tennessee case that spoke directly to a major issue at play in the current case — fertility. “Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the preembryos to achieve pregnancy should be considered,” the Tennessee court wrote. Hall’s second ruling in the case again went in Dunston’s favor. She ruled that Szafranski and Dunston created a verbal agreement on March 24 — the day Dunston called Szafranski at work — which Szafranski later followed by providing his sperm. “The agreement represents the intent of the parties, at the time, that Karla need not obtain Jacob’s consent to attempt to have a child,” Hall wrote. The judge noted that neither Dunston nor Szafranski intended the relationship to last, and that Szafranski did not place any conditions on future use at the time Dunston’s eggs were harvested and fertilized. The informed consent was not a legal agreement between the couple, Hall held. The co-parent agreement, never signed, didn’t carry enough weight. It is not the first time in Illinois that a sperm transfer has sealed a contract. A 2005 case before the 2nd District Appellate Court arose out of an affair between a married male doctor and another doctor. After performing oral sex on the man, who had told her he did not want to have children with her, the woman allegedly saved his sperm and used it to become pregnant. She then sued him for child support after the baby was born. The court sided with the woman in that case for a reason that echoes the trial court’s logic in Szafranski v. Dunston — if you perform, you are validating a contract. When the doctor “‘delivered’ his sperm,” the court ruled in 2005, “it was a gift — an absolute and irrevocable transfer of title to property from a donor to a donee.” The

man was ordered to pay $800 a month in child support. Pending appeal Hall’s second ruling is now being appealed, with the question being whether the trial court correctly applied the test created from the first appeal: Was a verbal agreement made from that original phone call? Schroeder, Szafranski’s attorney, argues that Szafranski’s agreement to create the embryos — which is what he said he agreed to do in the phone call — is a different question from agreeing to let her use the embryos. Szafranski argues he always retained that right. Moore, Dunston’s attorney, said in some cases it is true that agreeing to create embryos and agreeing to use the embryos are different things. Here, though, the deal was specifically to create embryos for her to use if she survived her treatments, he says. There are a number of possible rulings that could come from the appellate court. It could affirm the trial court’s finding. In that outcome, Schroeder said he will appeal to the Illinois Supreme Court, asking it to address his constitutional argument that Szafranski should not be forced into fatherhood. That question could also be posed to the U.S. Supreme Court. “Why can’t you change your mind?” Schroeder said. “That’s what this case is about. … Why shouldn’t what he thinks now be considered? Because it goes to the most basic, fundamental thing you can do: Creating life.” Schroeder made the same argument to the appellate court, saying “the right to an abortion is a semantic recasting of the right not to be a parent.” His basic idea is that a woman has the right to an abortion over her partner’s objections when the embryo is in her body; and so a man — or any partner — should have an equal right not to become a parent when the embryo is not yet in her body. “The tie … in abortion (disputes) goes to the woman because she’s carrying the baby in her own body,” Schroeder said. “Here, that’s not the same. You’ve got an embryo sitting in a freezer somewhere. So what makes the woman’s rights superior to the

man’s? They’re equal, is my point. And since they’re equal, they both need to consent.” The appellate court rejected that argument in Quinn’s 2013 ruling, citing law from U.S. Supreme Court abortion cases that use a balance-of-interests test to give women a right to terminate pregnancy. Moore points out that in the abortion context, the parties start off with equal rights. And in instances where there is no baby in a body, saying that the person who doesn’t want to have a child should always prevail, Moore believes, gives that person “a superior right, not an equal right.” Glenn Cohen, a Harvard Law School professor who has written academic papers on embryo disputes, does not believe constitutional cases answer whether a person has a right to an abortion when an embryo is not inside a woman’s body. “There’s no precedent from the Supreme Court that suggests as a constitutional matter (that) you have a right not to be a genetic parent when that is unbundled from gestating as it is in the case of frozen embryos,” he said. “Do (I) think there’s a good argument that there’s a constitutional right that he could invoke in this case? My view would be no.” John Robertson, a professor at the University of Texas School of Law and chair of the American Society for Reproductive Medicine’s ethics committee, said Szafranski’s abortion argument did not persuade him. “I see the rough analogy, but somehow I’m not convinced by it,” Robertson said. “Yeah, location matters. But more important, the contract matters.” A moral balancing act The appellate court could also rule the verbal contract the trial court relied on was invalid, and that the balance-ofinterests test should apply. That would raise the question: What factors should be tossed on the scales? Should the court consider Szafranski’s claim he lost a woman he loved because she was opposed to him having a child out of wedlock? How, if at all, should the court weigh the fact that Dunston has given birth to a child since this dispute arose?

Dunston’s attorney has fought to bar as evidence the fact that Dunston carried a child to term and gave birth after having a donated embryo implanted in her. The interest that Dunston is fighting to preserve is her right to become a “genetic” parent, her attorney argues. But could one argue that the emotional bond created by becoming a “gestational” parent is a sufficient stand-in for becoming a “genetic” parent? Does it make a difference that Szafranski is not being asked to raise the child or provide for it financially? Texas’ Robertson believes that, yes, that is a lesser burden than if he were to have to pay for the child to be raised. But how can a court account for the inherently personal nature of such a decision? One man may prefer not taking financial care of their offspring, while another may feel compelled to do so. Complicating things further, under Illinois’ current parental rights laws, a child born with Szafranski’s genetic material could later seek child support from him, no matter what contract he and Dunston agree to, according to Northern Illinois University College of Law professor Jeff Parness. “Can the kid file a support action even though the mother earlier lost a support action? Yes. Because the kid’s right to recover from a parent is distinct from the other parent’s,” Parness said. (Recognizing the potential for such a complication, Washington state, Texas and Colorado passed laws making it possible for a man to avoid legal parenthood of an embryo implanted after a divorce.) If there is a problem with the balance of interests test, it is that it is impossible to assign a specific weight to each factor in a case. “It’s balancing in the sense of a judge says, ‘Let me look at all these factors and then I’ll pick a winner,’” Harvard’s Cohen said. But whatever its limitations, Kimberly Mutcherson, a professor at Rutgers School of Law-Camden who teaches a class called Bioethics, Babies & Babymaking, believes the test — in the absence of a contract — allows courts to capture the variety and complexity that exist in embryo disputes.

“I can understand how people don’t like how that weighing comes out often, but I do think that there’s a weighing that goes on,” she said. “Because what we’re talking about here is so core for so many people and is so reflective about the basic way they think about the world, I think that we want to tread really lightly and really carefully here.” For Illinois lawyers who counsel clients in IVF procedures every day, Szafranski v.

Dunston has some practical takeaways. Couples should take plenty of time consulting with their lawyers. Lawyers should ensure that the tough questions get answered. And, given the 1st District Appellate Court’s decision to rely on contracts, fertility clinics should demand signed agreements, rather than allowing couples to rely on “informed consents,” Desai and Mutcherson say.

“The only reason we are having these discussions is because we are able to do things that we were never able to do before,” Mutcherson said. “It’s amazing what medicine and science have done, but as is always true when we have advances like that, the law is always trying to catch up.” n [email protected]

© 2014 Law Bulletin Publishing Company. Reprinted with permission from Law Bulletin Publishing Company.