Embryos court battle : Former couple take fight over frozen embryos to court. In a case before the Illinois Supreme Court, an Elgin man who had previously agreed to help his girlfriend conceive through in vitro fertilization argues that, after they broke up, he never agreed to give up a say in whether he becomes a parent and that forced procreation would violate his constitutional rights.
His ex-girlfriend, who has been diagnosed with non-Hodgkin lymphoma, insists that she has the right to have her biological child, and she should control the destiny of the embryos.
As reproductive technology outpaces the law, the case is being watched by physicians and attorneys across the country. The Illinois Supreme Court is expected to weigh in on Szafranski v. Dunston — and the fate of three embryos cryo-preserved at Northwestern — later this month.
in June 2010, he wrote in an email that he worried he would find someone he was ready to have a family with – but that they would reject him based on the fact he had a child he did not know with a women he did not love.
But as had been predicted, Dunston was left infertile by her successful cancer treatment. Experts said that this infertility did not mean she was unable to carry the embryos and have a child.
She wrote her ex-boyfriend an email in September 2010, reading: ‘I had a chance to use a random sperm donor and you took that away from me by agreeing to help.
‘I trusted you and now you are trying to take away my chance of having a biological child… Those embryos mean everything to me, and I will fight this to the bitter end.’
After the fallout, a Cook County trial court awarded Dunston rights to the embryos, but Szafranski appealed and a higher court sent the case back, explaining that the case focuses on prior agreements rather than the interests of either party.
The battle now concerns whether the pact occurred when Szafranski gave the sample or when they signed the medical consent form requiring joint consent for the use of the embryos.
His attorney, Brian Schroeder, argued that couple often change their minds about having children and the courts should not be involved.
But Dunston’s lawyer, Abram Moore, countered: ‘At this point, that sperm no longer exists. It has fertilized an egg and become something entirely different: a pre-embryo. It is now too late for him to back out of his promises.’
The couple is now waiting for the Illinois Supreme Court to decide if they will hear the case.
Dunston went on to carry a son and gave birth to him, according to Mr Schroeder. He said that she used donor eggs and sperm for the child, who was born in June 2010.
But he added that her having a child would not affect the case as courts differentiate between biological children and one that is essentially adopted, he said.
‘I think it should [affect the case] but while it seems to affect the case practically, it doesn’t affect it legally,’ he said. ‘I don’t think the court will consider it as she could always adopt.
Dunston’s attorney, Abram Moore, confirmed that his client never carried Szafranski’s son but would not comment further.
The case centers around a very modern problem – and an example of technology causing problems that far exceed the scope of the law. The need for a definitive ruling is needed now more than ever.
In 1985, 260 babies were born through assisted reproductive technology; in 2010, the number topped 61,000, according to the American Society for Reproductive Medicine
‘This is a decision that really affects every person,’ he told MailOnline. ‘Hundreds of thousands of embryos are frozen in Illinois and this case affects what you do with these.
‘It raises some very fundamental issues about creating human life and when your consent is required and it affects all of those cases in the future.’