Sheldon A. Harris
Laura Liu
When it comes to creating frozen embryos in Illinois, your word is your bond. Even if you wish it wasn’t.
That’s the essence of a 52-page ruling handed down today by the 1st District Appellate Court in a long-running case in which a man sued his ex-lover to prevent her from having their child through frozen embryos created before the couple ultimately broke up.
On March 24, 2010, Jacob Szafranski agreed during a phone call at work to provide sperm for his then-girlfriend Karla Dunston, who had just been diagnosed with non-Hodgkin lymphoma and was facing near-certain infertility.
That phone call created an oral contract that allows Dunston, now cancer-free, to use the eight embryos despite Szafranski’s strong objections, a divided three-justice panel ruled, affirming a May 2014 Cook County Circuit Court decision.
While Dunston will have to wait to become pregnant with her biological child as Szafranski’s lawyers have pledged to appeal to the Illinois Supreme Court, Szafranski will remain in a separate, legal limbo.
He and the appeals court are uncertain as to whether Illinois law could hold him financially responsible for any resulting child, despite Dunston’s stated intent to raise the child on her own without help.
Meanwhile, a law school professor and expert on fertility law said she worries that if a word-of-mouth contract exists in the very act of creating frozen embryos, it will add uncertainty to an already complicated and evolving process for couples, fertility clinics and fertility lawyers.
Justice Laura Liu wrote the couple’s oral contract did not include a provision that would allow Szafranski to object to Dunston’s use of the embryos.
Liu also noted that by participating in the procedure at every step, including a last-minute decision to fertilize all of Dunston’s harvested eggs, Szafranski did not add such a provision. The original plan was to fertilize half of her eggs, but the harvest fell short of expectations.
“We see no error in the circuit court’s finding that the parties intended to allow Karla to use the pre-embryos without limitation when they formed the March 24 contract,” Liu wrote with John B. Simon in concurrence.
Justice Sheldon A. Harris dissented, writing that testimony by both parties showed the couple never discussed whether Dunston could ultimately use the embryos before they were created.
“Since there is no evidence that Karla and Jacob agreed on that essential term when they agreed to utilize the procedure on March 24, there can be no enforceable contract,” Harris wrote.
Today’s ruling was the second time the 1st District has made a decision in the case. And it may not be the last for a court of review.
Brian A. Schroeder, a partner at Schiller, DuCanto & Fleck LLP and Szafranski’s attorney, said he will appeal to the Illinois Supreme Court and, potentially, to the U.S. Supreme Court. Any appeal to the U.S. high court would be based on a constitutional argument that a person has the right to not be forced to become a parent.
Regarding the oral contract issue, Schroeder said what hasn’t been discussed can’t be agreed to.
“I believe it is contrary to the testimony both Karla and Jacob provided that they never discussed” using the embryos, Schroeder said. “And I simply do not believe it can be a valid matter of contract law that a court can decide there has been agreement on an issue the parties agree they have never discussed.”
Abram I. Moore, a partner at K&L Gates who represents Dunston, cheered the court’s ruling.
“In today’s decision, the appellate court affirmed that (Szafranski) should be held to his promise and that Dr. Dunston should have the opportunity to become a biological mother,” said Moore, who is also representing Nick Loeb in a similar lawsuit in California, where he seeks to use the embryos he created with his ex-lover, actress Sofia Vergara, against her wishes.
Szafranski and Dunston first met in 2001 while working together in a hospital. Dunston is an emergency room physician and Szafranski a firefighter, paramedic and registered nurse.
They began dating in November 2009 and broke up after they created the embryos. Szafranski then sued Dunston, attempting to bar her from using the embryos.
The first ruling in the case came in September 2012 when Cook County Circuit Judge Sophia H. Hall issued summary judgment in Dunston’s favor. She based a large part of her ruling on the fact that this is Dunston’s last chance to have a biological child.
A unanimous panel reversed and remanded that decision in June 2013. The late appellate justice Patrick J. Quinn wrote in a 31-page ruling that created guidelines for this case of first impression.
First, he wrote, judges should let any contracts made between the parties determine the embryos’ fate. If there are no contracts in place, they should use a “balance-of-interests” test. In other words, decide who has the better argument: The person who wants to become a parent, or the person who doesn’t.
Simon and Harris concurred with Quinn in the 2013 opinion. The Illinois Supreme Court declined to hear the case and it returned to the Daley Center.
Hall again ruled in Dunston’s favor in a May 2014 order. She said a verbal contract was created between the two when, in a bathroom stall at work as a paramedic, Szafranski agreed to provide sperm for Dunston’s embryos. Hall said he later performed under that contract when he provided the sperm at Northwestern University Fertility Clinic.
On appeal, Szafranski argued that an informed-consent agreement provided by Northwestern, which the parties signed, should be enforced. That contract said Northwestern would not release the embryos without both parties’ agreement.
Today’s ruling affirmed Hall’s finding that the informed consent did not constitute a binding contract. That is because it also had language deferring to any agreements between the parties. That meant the March 24 oral contract held sway, Liu wrote.
Kimberly Mutcherson, who teaches Bioethics, Babies & Babymaking at Rutgers School of Law-Camden, said she was disappointed with the court’s ruling that oral contracts could trump a contract that a couple signs.
“It’s very dangerous for fertility clinics, because it’s no longer clear that the contracts they have people sign are meaningful at all,” Mutcherson said.
“I think it’s really unfair to expect a layperson to think they might have an oral contract that can override what they just signed.”
She said adding the concept of an oral contract to fertility law only further “muddies the waters.”
Liu highlighted a separate concern. Under Illinois law, Szafranski could ultimately be found financially responsible for any child resulting from the embryos, an issue she called “the elephant in the room.”
While Moore stressed Dunston is not seeking “money, support or anything else whatsoever” from Szafranski, Schroeder said it remains a concern if Dunston were somehow unable to care for the child.
“The state of Illinois might have a different view on what Jacob’s support obligations should be,” he said.
The appellate court also answered the question of how much weight courts should give to the fact that this is the last chance for Dunston to have a biological child. Dunston’s interests override Szafranski’s, Liu wrote.
The court dismissed evidence introduced by Szafranski that Dunston had given birth to a child using a donated sperm and donated egg. The issue was a biological one.
“Jacob’s interests in not using the pre-embryos and keeping them frozen, indefinitely, are valid and not insubstantial,” Liu wrote.
“Under the unique circumstances in this case, however, Karla’s interests in using the pre-embryos to have a biologically related child — given her ovarian failure and inability to create any more pre-embryos with her own eggs, prevail.”
The case is Jacob Szafranski v. Karla Dunston 2015 IL App (1st) 122975.