Related Story
Roy Strom wrote about this case in a September 2014 Chicago Lawyer magazine article, "Frozen embryos: Who do they belong to?"
Related Story
Roy Strom wrote about this case in a September 2014 Chicago Lawyer magazine article, "Frozen embryos: Who do they belong to?"
Embryos being placed onto a CryoLeaf for instant freezing. 
Embryos being placed onto a CryoLeaf for instant freezing.  — File photo, Ben Birchall/PA Wire via The Associated Press

In the wake of a highly anticipated 1st District Appellate Court ruling involving frozen embryos last week, two things are clear.

Karla Dunston won the right to use them, and Jacob Szafranski plans to appeal to the Illinois Supreme Court, still objecting to what he considers forced procreation.

Apart from that, uncertainty looms for fertility clinics and in-vitro fertilization patients.

Fertility lawyers and law professors are questioning whether the ruling could open fertility clinics to legal liability.

Their opinions are also divided on the implications of the Illinois Appellate Court’s ruling that Szafranski’s providing of sperm to fertilize Dunston’s eggs constituted an “oral contract” that now permits Dunston to use the embryos over his objection.

Does that make written contracts more or less important for in vitro fertilization patients? And is making an embryo in Illinois now the same as agreeing to have a child?

“We’ve got to really take a look, with fertility clinics, at exactly what they’re having patients sign,” said Candace Marie O’Brien, a sole practitioner who has practiced fertility law for six years.

“I think there should be more discussion about this.”

Dunston and Szafranski have been in litigation for the past four years over the custody of embryos they created during a fleeting romance that coincided with Dunston being diagnosed with lymphoma. Chemotherapy treatments left her infertile and using the embryos are her last chance at becoming a genetic mother.

The appellate court on Friday ruled in her favor, finding an oral contract gave her the right to use the embryos.

Evidence of an oral contract included the fact that when Szafranski created the frozen embryos, he did not mention that he might later object to them being used to have a child.

The court also highlighted a split-second decision Szafranski made when the fertility doctor informed the couple that he had harvested fewer eggs from Dunston than expected: Szafranski agreed to use his sperm to inseminate all of the eggs, rather than half as initially planned.

“It is … undisputed that neither of the parties contemplated a limitation on Karla’s use of the pre-embryos at any time prior to their separation,” Justice Laura Liu wrote.

But Szafranski argued that, indeed, he had contemplated a limitation on their use.

That limitation existed in a document the couple signed at Northwestern’s fertility clinic known as an “informed consent.” It states the clinic would not release the embryos unless both parties agreed to their use.

The document also says, though, it would defer to any agreement made between the parties relating to who controls the embryos in the event of a breakup.

The court found the informed consent was not binding between the couple — the oral contract was. And that raises troubling questions for fertility clinics.

For instance, what happens now if a client demands the clinic release embryos over their partner’s objection?

Even if that hypothetical couple had not signed a contract giving one party control of the embryos in the event of a breakup, a patient could now theoretically argue that the embryos were always intended to be used by the very fact that the parties agreed to make them.

“I don’t think that’s far-fetched,” O’Brien said. “I think that’s precisely what you can see a lawyer recommending and putting the clinic right in the middle.”

“I think the response in that case from the fertility center would be: Give me a court order,” said Nidhi Desai, a partner at Ballard, Desai & Miller who counsels fertility patients on these issues.

Desai said she would counsel fertility clinics to update their informed consent documents to include language requiring the parties’ agreement or a court order to release the embryos.

She said fertility clinics may need to change their practices regarding informed consents in other areas, too.

In embryo or egg-donation procedures, some clinics use informed consents to have the donor sign away all legal rights to the embryo or egg they intend to donate. It is unclear, though, if that would withstand a legal challenge by a donor having second thoughts about giving up their eggs or embryos.

“Fertility centers are relying on these informed consents to give up legal rights to these eggs in a way that — if they didn’t believe it before, they should certainly understand after reading this ruling — will not protect the intended parents,” Desai said.

“There really should be a contract between the donor and the intended parents. We’ve stretched the concept of an informed consent way past its original purpose.”

Northwestern Medicine declined to comment on the ruling’s potential impact.

The prospect that an oral contract could be asserted in litigation against a fertility clinic highlights another concern with the Illinois ruling — verbal agreements are easily debatable.

“With a written agreement, it is easy to know what you’ve agreed to. You look at the words,” said I. Glenn Cohen, faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School.

“The moment we’re allowing oral agreements, we’ll have evidentiary fights about who said what and what they meant.”

There is even a question of whether the court’s oral contract finding went against the logic of its own earlier ruling.

In the appellate court’s first ruling in this case, it created a hybrid approach to solving embryo disputes.

First, it said courts should look for a contract that resolves the dispute. If no contract exists, courts should balance the interests of the parties and determine who has a more compelling argument — the person who wants to become a parent or the one who wishes not to.

If an oral contract exists in the making of embryos, however, it is hard to imagine a scenario in which a contract would not exist. The court’s backup plan — the balance-of-interest test — may be a moot point in any case.

“If we’re going to accept that oral agreements are enough,” Cohen said, “the number of cases where there is neither an oral agreement nor a written agreement, and thus the balance-of-interests test will be applied are going to be very small.”

The questions surrounding the case highlight what fertility lawyers already know about this area of the law: It is still developing, sometimes through trial and error.

“The point here is: It’s kind of confusing, isn’t it?” O’Brien said.