File photo, Ben Birchall/PA Wire via The Associated Press
Embryos being placed onto a CryoLeaf for instant freezing. After working its way through the Illinois court system for more than five years, the U.S. Supreme Court Monday rejected an appeal by a Chicago area man hoping to prevent his ex-girlfriend from using frozen embryos they created in 2010. 
Posted March 2, 2016 2:25 PM
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SCOTUS ends long Illinois embryo battle

By Roy Strom
Law Bulletin staff writer

The U.S. Supreme Court has rejected a Chicago-area man’s last chance bid to prevent his ex-girlfriend from having a child using embryos the couple created together.

The high court on Monday denied Jacob Szafranski’s petition to hear the case.

The denial brings an end to an emotionally charged legal battle that began nearly five years ago after Szafranski and Karla Dunston in 2010 hurriedly created embryos that would be frozen in an effort to preserve Dunston’s fertility as she underwent cancer treatments.

The couple would eventually break up. Dunston would survive the cancer treatments at the cost of her fertility. Szafranski would later object to the birth of a child. And Dunston would say having a biological child was “the most important thing in my life.”

The ruling provides a profound implication: It allows a life to begin.

It also brings new questions for the couple. Dunston can now legally have a biological child. She must decide if she will.

If she does, Szafranski will have to determine what it means to be a biological father. Dunston has said she will not ask him to support the child financially.

In court testimony, he has said he would not want to have a child whose life he does not participate in, and that having a child with someone he does not love would make him less appealing to other women.

If a child is born, Dunston — or Dunston and Szafranski together — will have to deal with the possibility that the child will discover his or her parents’ well-publicized and divergent desires.

Abram I. Moore, Dunston’s attorney and a partner at K&L Gates LLP, said his client was “ecstatic.” He declined to comment on whether she would use the embryos to have a child.

“We appreciate the effort of the Illinois courts to wade through what is a difficult question,” he said. “We think they came to the right conclusion and did it in a rational way while being sympathetic to the positions of both parties.”

“We are disappointed in the decision. Other than that we have no comment,” Brian A. Schroeder, Szafranski’s attorney and partner at Schiller, DuCanto & Fleck LLP said in an e-mail.

There are also repercussions for reproductive attorneys. There is now controlling precedent for contested-embryo cases in Illinois, one of roughly 12 states where courts have considered a contested embryo case.

Some say the ruling made by Cook County Circuit Judge Sophia H. Hall and affirmed by the 1st District Appellate Court invites confusion for couples and fertility clinics.

The ruling said that, prior to creating the embryos, the couple created a verbal contract that included Dunston’s use of the embryos. By remaining silent on the issue of the embryos’ use, Szafranski did not negotiate a contract that gave him the right to later object to their use. Hall ruled that gave Dunston the right to use the embryos.

But some attorneys have said the ruling isn’t practical: What couple is contemplating a breakup when they are thinking about having a child?

Other attorneys have said it highlights the need for fertility patients to consult a lawyer and have these discussions before creating embryos.

“It puts people who are trying to have babies using reproductive technology in a really awkward position,” said Kimberly Mutcherson, a law professor who teaches bioethics at Rutgers Law School.

The ruling also raises legal questions for fertility clinics.

Dunston and Szafranski signed a medical consent form provided by the fertility clinic which stated, “No use can be made of these embryos without the consent of both partners (if applicable).” The court ruled that the consent form did not modify the oral contract, which included no provision requiring both parties’ consent.

“It’s very dangerous for fertility clinics, because it’s no longer clear that the contracts you have people sign are meaningful at all,” Mutcherson said.

It appears that in the absence of a written contract between the couple, Illinois courts will assume that creating an embryo is the same as agreeing to the birth of a child.

“Based on that decision, I would say yes, that’s the situation,” said Candace O’Brien, an attorney who counsels fertility patients.

That raises questions that could lead to more litigation. In a contested case, should a fertility clinic rely on one person’s word and release the embryos? If the clinic refuses to release the embryos, could it be sued?

“A fertility clinic is going to be put in the position of saying, ‘We need a judicial determination of this,’” O’Brien said.

While the Illinois case is settled, the issue of how to decide contested embryo cases remains a hotbed for legal activity.

Hollywood actress Sofia Vergara and her ex-boyfriend Nick Loeb are locked in such a battle in California. Loeb, a businessman, is represented by Dunston’s attorney, Moore, who is arguing that Loeb should be able to use the embryos over Vergara’s objection.

The court in that case is currently considering a motion for summary judgment filed by Vergara, Moore said. A trial could occur this summer.

Szafranski’s attorney, Schroeder, asked the U.S. Supreme Court to consider his client’s case in an effort to carve out a constitutional right to avoid “forced parenthood.” His argument relied on privacy rights he said existed under the famous abortion case Roe v. Wade.

On the other side of that attempt was Thomas G. Olp, an attorney with the Thomas More Society, who filed with the Supreme Court an amicus brief in favor of Dunston’s position.

Olp wants courts to adopt a new outlook on embryos: To see them as human life, not as property, as most courts treat them. That argument has found little footing.

“It’s a question that’s not going away,” Olp said. “And it’s a very difficult one.”

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Brian A. Schroeder

Schiller DuCanto & Fleck LLP
200 N La Salle St —30th Fl
Chicago, IL 60601-1089
(Cook County)

312 641-5560 (voice)

Abram I. Moore

K&L Gates LLP
70 W Madison St —Suite 3100
Chicago, IL 60602-4207
(Cook County)

312 372-1121 (voice)

Thomas G. Olp

Connor-Winfield Corp
2111 Comprehensive Dr
Aurora, IL 60505-1345
(Kane County)

630 851-4722 (voice)

Hall; Sophia H.
Circuit Court of Cook County

50 West Washington Street
Chicago, IL 60602
3126033733 (phone)

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