CHICAGO, September 27, 2013 — The Illinois Supreme Court is considering whether to hear a case concerning whether the state has the right to enforce parenthood on an unwilling participant. At first glance, it seems an easy call. The government should have no say in the matter; it is a personal decision.
The case of Szafranski v. Dunston, however, is not simply about a woman who wants children and an ex-boyfriend who doesn’t. It is also about the three frozen embryos they created while they were still together.
Jacob Szafranski and Karla Dunston had worked together for nine years when their relationship took a turn toward romance. Five months into the relationship, Dunston received the devastating diagnosis of non-Hodgkin’s lymphoma. As she braced herself for the fight for her life, she was also told that her treatments would likely destroy her fertility. She asked Szafranski if he would donate sperm to be combined with her eggs so that she could one day have a biological child. One week after Dunston’s diagnosis, the couple began the process that ultimately created three pre-embryos, which were cryopreserved while Dunston underwent chemotherapy.
About a month later, Szafranski sent Dunston a text message ending their relationship.
A little over a year after the relationship ended, Dunston, now cancer-free, was informed that Szafranski had filed a lawsuit to prevent her from using the frozen embryos to preserve his right to “not forcibly father a child against his will.” (Szafranski v. Dunston, 2013 IL App [1st] 122975.) While Dunston had responded well to her cancer treatment, she did indeed lose her fertility. The embryos are her only chance to have a biological child.
Typically, the courts have three options on how to decide these cases: the contractual approach, the contemporaneous mutual consent approach, and/or the balanced interests approach.
A contractual approach to resolution relies on the contracts the couple signed. This approach may sound logical, but it has been argued that public policy has no right to force parenthood on someone who has changed her or his mind.
The contemporaneous mutual consent approach simply requires the participants to agree to any action taken whether implantation, destruction or donation. That sounds simple enough, but as the Superior Court of Pennsylvania noted in a similar case, “If the parties could reach an agreement, they would not be in court.” Also of concern is the fear that in a divorce situation, one party could use the embryos as a bargaining chip. (I’ll give you the embryos if you give me the house.)
The third option is the balancing of interests. If the courts find that contracts are not clear, they consider the interests of both parties. Generally, if one party is unable to have a child, it weighs in that person’s favor. This approach, however, again puts the decision to become a parent in the hands of the courts.
In court, Dunston argued that by donating sperm, Szafranski took away her option of using a random sperm donor, and that if the court balanced their interests, her right to a biological child outweighed his right not to be a father. Szafranski argued that his decision was made under duress and that his constitutional right to not be a parent means both parties must consent to any use of the pre-embryos.
Dunston won the court case. Szafranski appealed. On appeal, the ruling was reversed.
The appellate court found that the original ruling was based on the balanced interests approach when it should have been based on the contractual approach based on the couple’s “prior agreements.” It did not, however, indicate which agreements should be considered.
The couple had signed a medical consent form with the hospital, which required joint consent for any use of the embryos. Dunston argues that the consent form is a contract between the couple and the hospital, not between herself and Szafranski. Previous cases in other states have gone both ways on whether or not the consent form binds the parties to each other.
The court could also consider that Szafranski gave his consent for use of the embryos by donating his sperm and through a note he wrote to Dunston stating that he “wanted to help her have a baby.” (Rubin& Lourgos, Chicago Tribune, Sept 18, 2013)
And then there’s the co-parenting agreement that was drawn up that gave Dunston control over the embryos. Dunston says Szafranski agreed to the co-parenting agreement; Szafranski says he did not. It was never signed by either of them.
Adding to the murkiness of the situation, Szafranski at one point agreed to let Dunston use the embryos on the condition that the medical records be destroyed so that the sperm could never be traced back to him. The hospital refused.
According to Belga News Navigator, since the start of proceedings, Dunston has given birth to a son conceived through the use of donor eggs and sperm. Legally, this has no impact on the case as courts differentiate between biological and non-biological children. Dunston’s son is basically considered adopted in the eyes of the court, a choice she has had all along.
What neither party has considered is how this will all affect the child or children who may eventually be born. No matter what Mom tells them, they will someday be old enough to Google search Mom’s name. The whole story will be laid out in front of them. Yes, you have a daddy, but he never wanted you. Oh, and here’s his name.
But you also have a mommy, and she fought for you with everything she has. You are loved. You are wanted.
Isn’t that what it all comes down to in the end?
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