Appellate Court: Elgin man's consent not required for use of embryos he helped create
The Illinois Appellate Court Friday affirmed a lower-court ruling that an Elgin man does not have to give his consent for his ex-girlfriend to have a child using frozen embryos they created together.
The court found Jacob Szafranski and Karla Dunston formed an "oral contract ... to create pre-embryos that Karla could use to have a biological child," according to the opinion released Friday. They did so because Dunston was diagnosed with lymphoma in 2010 and feared she would be unable to have biological children later.
Szafranski sought to prevent Dunston from using the embryos and claimed the couple signed a medical informed consent agreement, which he believed to be legally binding, that stated: "no use of the embryos can be made without consent of both partners," according to court documents. The court, however, said the agreement didn't override the original oral contract.
"After Dr. Dunston won a tough battle with cancer, these three embryos represent her last chance to have biological children," said Dunston's attorney Abram Moore in a prepared statement. "Mr. Szafranski agreed to create the embryos for one purpose only: so that Dr. Dunston could use them to attempt to have biological children if she survived cancer. In today's decision, the appellate court affirmed that he should be held to that promise."
The case is the first in the state to address what happens to frozen embryos when the man and woman disagree about their use.
Szafranski's attorney, Brian A. Schroeder, said he will appeal the ruling to the Illinois Supreme Court and potentially the U.S. Supreme Court, claiming the decision sets a bad precedent because it suggests "if you sign something it won't be valid in the future."
"The decision to procreate is a fundamental human right and couples often change their minds about having children," said Schroeder in a prepared statement. "No one should be forced into parenthood if that is not something they want."
Szafranski, a firefighter/paramedic and registered nurse, and Dunston, an emergency physician, knew each other for eight years before they began dating in November 2009. In March 2010, Dunston was diagnosed with lymphoma. Informed that chemotherapy would cause her to become infertile but still wanting to have a child, Dunston decided to freeze her eggs, which Szafranski agreed to fertilize with his sperm, according to court documents.
The couple subsequently broke up and Szafranski filed suit to prevent Dunston from using the embryos to have children. A Cook County judge ruled in Dunston's favor.
Szafranski appealed, and the Appellate Court sent the case back to the circuit court with orders that the court consider any advance agreement the couple had and - absent that - weigh the interests of both parties in its decision, court records show.
In May 2014, Judge Sophia M. Hall again ruled in Dunston's favor. She said the embryos represented Dunston's last opportunity to have a biological child and that outweighed Szafranski's interests.
Dunston's attorneys said their client is not asking for financial or any other kind of support from Szafranski and insisted he will have no legal or financial obligations to any future children.
Schroeder countered that Dunston can't predict what will happen in the future and her position might change. Moreover it "glosses over his right to be a father if he wants to be," said Schroeder, adding that Szafranski believes his rights have been violated.
"We hope (this decision) is not the final say in the matter and we look forward to our position being vindicated," Schroeder said.