An Illinois man’s attempt to prevent his ex-girlfriend from birthing embryos they created is on life support after the Illinois Supreme Court declined on Wednesday to hear his appeal of a 1st District Appellate Court ruling from June.

The denial represents another step closer to having a biologically related child for Dr. Karla Dunston, who has been in a protracted legal battle with Jacob Szafranski since August 2012.

Standing in the 44-year-old doctor’s way now will be an appeal to the U.S. Supreme Court that Szafranski’s attorney said he will file within 90 days.

The erstwhile couple has been fighting over custody of the embryos they created during a brief romance that coincided with Dunston’s being diagnosed with non-Hodgkin lymphoma in 2010.

Dunston has recovered from cancer treatments, but she was also left infertile. The embryos in the lawsuit are her last chance at having a biologically related child, although she has given birth to a child born through donated egg and sperm.

Szafranski’s attorney, Brian A. Schroeder of Schiller, DuCanto & Fleck LLP, said he was “stunned” by the latest decision and will file a writ of certiorari to the U.S. Supreme Court.

Schroeder seeks to establish a constitutional protection against what he considers forced procreation, which he has compared to a woman’s right to an abortion.

“We still maintain that Jacob’s desire not to become a parent is equally as valid as Karla’s desire to become a parent,” Schroeder said. “And it’s not for the judiciary or any branch of the government to decide.”

Schroeder described the primary argument he would make as a “constitutional liberty interest under the 14th Amendment.”

The Illinois Supreme Court’s choice not to hear the case is somewhat of a departure from how other state judiciaries have handled disputes over the custody of embryos.

The highest courts in New York, New Jersey, Iowa, Massachusetts, Washington and Tennessee have all weighed in on the issue.

Dunston’s attorney, Abram I. Moore of K&L Gates LLP, said he was not surprised by the court’s decision to deny the petition for leave to appeal.

“From our perspective, the case is over,” Moore said. “I’d be shocked if the U.S. Supreme Court took this case,” he added.

Schroeder said Dunston had agreed to delay implanting the embryos until the appeals process was finalized. He said that agreement should remain intact as he pursues a ruling from the nation’s high court.

“For right now, our position is Ms. Dunston cannot use them because the case is not yet over,” he said.

The Illinois Supreme Court was presented the case shortly after a divided 1st District panel ruled in favor of Dunston in June.

The majority opinion said Szafranski entered into an oral agreement that allowed Dunston to have his child when he provided sperm to fertilize her eggs. The agreement did not contain a provision that allowed him a say in whether the embryos could be used, by virtue of his silence on the subject before providing the sperm, Justice Laura Liu wrote in the June 12 opinion.

“A trier of fact could reasonably infer from this evidence — Jacob’s failure to express any reservation as to the creation or use of the pre-embryos — that he never intended to limit Karla’s use of the pre-embryos,” Liu wrote, joined by Justice John B. Simon. Justice Sheldon A. Harris dissented.

That was the second time the 1st District gave an opinion in the case.

The first appellate ruling came in June 2013 after Cook County Circuit Judge Sophia H. Hall awarded the embryos to Dunston in a 2012 summary judgment order.

The case was one of first impression in Illinois and the appellate court created a legal test to determine the fate of contested embryos. First, Illinois courts should decide the cases by the terms of any contract the couple entered into before the embryos were created.

Some states, including Massachusetts and Iowa, do not allow contracts to rule the day in such cases.

The Illinois test has a second provision: If there is no contract, the courts should revert to a “balance-of-interests analysis.” Such an analysis considers the parties’ arguments in favor and against parenthood. In other states, this test has typically been used to grant custody to parties who are infertile.

Hall did not revert to that test, instead finding Szafranski’s decision to make the embryos was tantamount to agreeing to their use. That ruling was upheld on appeal, making Illinois one of at least 14 states to decide an embryo dispute.

Moore’s work for Dunston may be close to over, but he continues to represent Nick Loeb in a different high-profile embryo dispute with Hollywood actress Sofia Vergara.

Loeb is asking a California court to grant him custody of embryos created by the formerly engaged couple. He would have them implanted in a surrogate over Vergara’s objection.

“We expect to have a ruling on Oct. 27 as to whether we’ll go forward on that case,” Moore said. “Both parties have been deposed. We’re exchanging documents.”

The case is Jacob Szafranski v. Karla Dunston, No. 1-14-1539.