Couple goes through IVF, breaks up. Who decides what to do with the fertilized ova? [UPDATE: Further details about outcome of the case added.]

|The Volokh Conspiracy |

[UPDATE, 7/6/15 2:42 pm: I'm afraid that, when I looked up the case, I accidentally focused only on the 2013 decision, which set forth the legal rule, and missed the 2015 decision that applied the rule (finding that the woman should prevail under both the contract theory and the balancing theory). I've revised the post below to also cite and discuss the 2015 decision; my apologies for the error.]

The Appellate Court of Illinois chimed in a few weeks ago, in Szafranski v. Dunston, which in turn rested on a 2013 decision in the same case. Here's the fact pattern, which is apparently not unusual: Man (Jacob Szafranski) and woman (Karla Dunston) were dating; woman learned that she had cancer and that the treatments would make her infertile; she wanted to have children, so she and the man went through IVF; but then they broke up. She now wants to have one of the fertilized ova implanted, but he doesn't. Concern about child support apparently isn't the main problem. Although the man's lawyer tells me that "[i]t is unclear" and that "[t]he court mentioned but did not rule on that issue," according to the woman's lawyer:

[W]e have always been unequivocal with Mr. Szafranski and the Court that Karla wants absolutely nothing from him in the way of support. His attorney has argued that rights to support belong to the ultimate child and not Karla, so she is unable to waive them. However, we have expressly requested that Mr. Szafranski be declared a sperm donor under the Illinois code, which all parties agree would certainly relieve him of any support obligations to any resulting child. His response: he is not sure whether he would want to be a sperm donor or the child's legal parent. We have always told him that he can choose either option if he will simply allow Karla to become a mother.

If that's right, then the real objection on the man's part—and indeed the objection that the appellate court focused on—is that he doesn't want to be a father to a child of his and the woman's, even if he's off the hook for financial support. The woman, on the other hand, does want to be a mother, and being a mother of a child of hers and the man's is the only option, since she can no longer produce viable ova.

How should a court resolve the question? As the 2013 decision—which decided on the legal rule to apply—noted, different courts have taken different approaches:

  1. Some "enforce contracts governing the disposition of pre-embryos which were entered into at the time of in vitro fertilization so long as they do not violate public policy." If the parties agree that the fertilized ova can't be used unless they both consent at the time of the use, that agreement is enforced. If the parties agree that they can be used if either consents, or if just the woman consents, or if just the man consents, that agreement is enforced, too.
  2. Some take the view that "no embryo should be used by either partner, donated to another patient, used in research, or destroyed without the [contemporaneous] mutual consent of the couple that created the embryo," "contemporaneous" referring to consent at the time of the use, donation, or destruction. This "allow[s] a party to change his or her mind prior to use of the pre-embryos."
  3. Some take the view that "courts enforce contracts between the parties, at least to a point, then balance their interests in the absence of an agreement," with the balancing considering (among other things) whether the party that wanted to use the fertilized ova was no longer fertile, so that these particular ova were the only option for the party to become a biological parent.

The Illinois court went with approach #3, though with a greater focus on enforcing the parties' contracts if such contracts exist:

Although we acknowledge the concern that individuals may change their minds regarding parenthood during the process of in vitro fertilization, we note that this concern can be adequately addressed in a contract and should be discussed in advance of the procedure. We do not believe, however, that such a concern should allow one party's indecisiveness to plague a process, fraught with emotions and lifelong repercussions, with uncertainty at another's expense….

In addition to holding that agreements between the parties should be honored, we further hold that where there has been no advance agreement regarding the disposition of pre-embryos, "then the relative interests of the parties in using or not using the preembryos must be weighed." Although we acknowledge that this is not an ideal way to resolve a dispute implicating reproductive rights, we note that "what is even worse … is to give a possibly antagonized ex-spouse the power to either block parentage or to name the price that potential parentage will cost."

The court rejected the man's claim that this violated his constitutional right:

Appellant further argues that "his constitutional right not to be a parent means his consent is required for any use of the pre-embryos at the time of their use." In making this argument, appellant cites federal abortion case law and claims that "the right to an abortion is a semantic recasting of the right not to be a parent." However, he claims that

"unlike in the abortion context, in the context of cryopreserved pre-embryos the man and woman are in equal positions. And with this equality of positions comes the equality of the respective constitutional rights of a woman and man to control the use of the pre-embryos. As a result, the constitutional right not to be a parent means the consent of both the woman and the man is required for any use of the pre-embryos."

In other words, the appellant has essentially derived a right for him to unilaterally prohibit the use of a pre-embryo created with his sperm and appellee's egg, without regard to appellee's interests in the pre-embryo, from the fact that a woman has a constitutional right to terminate her pregnancy. This argument is without basis. We note that individuals may waive their constitutional rights, whether by contract or otherwise, and that the right to terminate a pregnancy, itself, is subject to a balancing of the interests involved. For instance, in Planned Parenthood of Central Missouri v. Danforth (1976), the Supreme Court noted:

"The obvious fact is that when the wife and the husband disagree on [the decision to terminate a pregnancy], the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor."

Similarly, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court addressed the interests of the State with respect to termination of a pregnancy:

"It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child."

We thus find no constitutional obstacle to honoring an agreement regarding the disposition of pre-embryos, and where there has been no advance agreement regarding the disposition of pre-embryos, then to balance the parties' interests in the event of a dispute.

The court sent the case back down to trial court, to gather further evidence as to whether there was an agreement on the subject (a matter that's in dispute) and presumably to consider how the interests should be balanced if there was no agreement. (The closing paragraph seems to focus on the trial court's applying "the contractual approach," which would be #1 in the list given above; but the rest of the opinion makes clear that the appellate court is authorizing balancing if no contract is found.)

The focus on contract seems right to me. These are the very sorts of issues that parties should be able to decide by contract up front, and then rely on that contract. True, people change their minds—and if you want to reserve that right, enter into a contract that lets you change your mind. But generally speaking, once you make a promise, and especially when others act in reliance on the promise (for instance, a woman goes through chemotherapy after creating fertilized ova with you, where absent your promise she could have gone to a sperm bank and created fertilized ova that way), you should be bound to that promise.

To be sure, there are exceptions. Indeed, there are certain promises that courts won't enforce when a party changes his mind: a promise to sell oneself into slavery won't be enforced; a promise to provide personal services won't be enforced through a court order, though a court might award damages for breach of the promise; a promise to have sex won't be enforced (even if the promise wasn't in exchange for money, and thus isn't itself criminal prostitution). The view of the legal system is that it would be too cruel to force people to engage in certain behavior—chiefly certain behavior involving their own bodies—even if they had once promised to do it.

But I think this needs to be a limited exception, and one that is generally not applicable when the people's physical actions are already complete, and the only question is who gets to do what with the product of those actions. Having to have a child out there whom you biologically fathered is not so cruel, I think, if you at one point agreed to create such a child, even if you have since changed your mind.

There are also certain promises that courts won't enforce because they affect third parties. If, for instance, the legal system took the view that life begins at conception, then not using the fertilized ova could be condemned as a wrong to that unborn child; but of course, rightly or wrongly, that is not the legal system's view. Likewise, if the legal system took the view that it is better for a child never to be born than to have only one parent raising it, then using the fertilized ova in a situation where the man has said he doesn't want the child might be seen as a wrong to the child; but again, that is not the legal system's view.

So it seems to me that enforcing the contracts, if there are such contracts, is the best solution here. I'm not sure about "balancing" in the absence of contracts, especially when the things to be balanced are so subjective and hard to compare against each other; it would be better, I think, to have a clear rule up front and then have parties contract (or not) with an eye toward the rule. (Compare, for instance, the distribution of a person's property when he dies. We generally enforce the will and, in the absence of a will, distribute according to a rigidly defined scheme, rather than "balancing" the prospective heirs' interests in the property.) At the same time, I acknowledge that where no contract is present, courts do sometimes try to figure out the best solution on a more case-by-case basis.

In any event, that's the legal rule—what about the application of the rule? After the 2013 decision sent the case down to the lower court, the lower court held in the mother's favor under both the contract theory (#1) and the balancing theory (#3). And last month, by a 2-1 vote, the Appellate Court affirmed. First, it held that "the parties [had] reached a binding oral contract concerning the use of pre-embryos that, unless modified or contradicted, remained in full force and effect," and found nothing in a later document "that would override Jacob and Karla's prior oral contract wherein the parties consented to Karla using the pre-embryos at her discretion to have a biological child." (You can read the opinion, and the dissent, for a discussion of the facts—be warned that it is long and very detailed.)

Second, and perhaps of more general interest, the court held that, even if there had been no binding contract, Karla would have prevailed under the balancing approach:

In Szafranski I, we held that if the parties did not have an advance agreement concerning the disposition of the pre-embryos, the circuit court must then weigh the parties' relative interests with respect to the pre-embryos. In reaching its judgment, the circuit court decided that while it did not need to address the parties' arguments under a balancing-of-the-interests approach, it would do so for the benefit of providing a complete record on appeal. The circuit court considered the evidence at trial and found that "Karla's desire to have a biological child, in the face of the impossibility of having one without using the embryos, outweighs Jacob's privacy concerns, which are now moot, and his speculative concern that he might not find love." We agree with the circuit court's conclusion that Karla is entitled to control of the pre-embryos under this test….

[T]he evidence considered by the circuit court in balancing the parties' interests was entirely factual in nature; the court conducted a fact-intensive inquiry into each party's interest in using or preventing the use of the pre-embryos. Therefore, we will reverse only if the judgment is against the manifest weight of the evidence….

In reviewing the interests of the parties, we observe that many of Jacob's cited concerns were risks that both parties faced and knowingly accepted in agreeing to undergo IVF. Jacob testified that he does not want Karla to use the pre-embryos primarily because of the impact it would have on his other relationships. He testified that he has lost a love interest—undoubtedly referring to Ashley—because of the situation with Karla; that "a lot of people" think of him differently now; and that he is worried that no one will want to have a relationship with him knowing that he has fathered a child with Karla through IVF. Jacob feels as if he is being forced to have a child; he testified that he does not "want to be a father like this" and contends that he should not be forced to procreate with a woman whom he does not love.

Karla, on the other hand, cannot have a biological child without using the pre-embryos. She suffered ovarian failure as a result of her chemotherapy treatment and cannot have a biological child without using the pre-embryos. Karla testified that she was "devastated" upon learning that she would lose her fertility and thought about how she wants to have a child "with part of" her father, who passed away when she was five years old.

She maintains that she does not expect Jacob to support any child born from the pre-embryos. Before and throughout the IVF process, Karla relied on Jacob's willingness to help her have a child. Following the retrieval, she relied on Jacob's assent to fertilize all of her remaining eggs with his sperm, thereby foregoing the possibility of using an anonymous sperm donor.

Having considered the testimony presented and the evidence under seal, we cannot say the circuit court's ruling, that Karla's interest in using the pre-embryos outweighs any interest Jacob has in preventing their use, was against the manifest weight of the evidence. At the heart of the evidence is an irrefutable fact: the sole purpose for using Jacob's sperm to fertilize Karla's last viable eggs was to preserve her ability to have a biological child in the future at some point after her chemotherapy treatment ended. The parties both recognized this when they agreed to create the pre-embryos together.

We concur in the circuit court's ruling that Karla's interest in using the pre-embryos is paramount given her inability to have a biological child by any other means. See Reber v. Reiss, 42 A.3d 1131, 1142 (Pa. Super. Ct. 2012) (balancing of the interests favored wife where the pre-embryos were her only opportunity to have a biological child); see also Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992) (noting that the balance of interests would be more likely to favor wife "if she could not achieve parenthood by any other reasonable means"). Although Karla has other options for becoming a parent, there is no evidence that she could have a biological child other than by using the pre-embryos. We decline to make a judicial determination that alternative methods of parenthood offer Karla an acceptable substitute to biological parenthood.

We also find no reason to disturb the circuit court's determination that Jacob's concern about not finding love in the future is "speculative." Moreover, his privacy concern is largely moot now as a result of the very public nature of this case.

The record lacks evidence from which a trier of fact may reasonably infer that Jacob's act—agreeing to help a friend threatened with infertility save her last chance to have a biological child—would be considered irreconcilable or repugnant by all future romantic prospects. It seems that Jacob's regrets about his role in creating the pre-embryos developed roots at the same time that some of his friends and family members voiced their disapproval. This was evident from Jacob's and Ashley's testimony, which revealed the strain on their relationship that resulted from Karla's desire to use the pre-embryos. In his effort to save this relationship, he had to conceal his subsequent attempts to resolve the dispute.

We do not discount this evidence in any way. However, without diminishing Jacob's valid concern that some may hold him in a negative light for agreeing to donate his sperm to a woman he never intended to marry and with whom he had no future, we will not give weight to the judgments of those who have no direct interest in this controversy.

Our opinion should not be read to minimize Jacob's concerns about becoming the biological father of a child born under these circumstances. We recognize the far-reaching consequences of the decision that Jacob made, in a short amount of time and under exigent circumstances, when he agreed to assist Karla in her IVF procedure.

Jacob's lack of hesitation in agreeing to help her create the pre-embryos was noteworthy and uncommonly selfless, so much so that Karla herself stated, even after the dispute arose, that she believed Jacob to be "this angel that was put in [her] life to help [her] through this." Jacob's interests in not using the pre-embryos and keeping them frozen, indefinitely, are valid and not insubstantial. 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 over Jacob's interests in not using them.

Finally, we must acknowledge the remaining elephant in the room—Jacob's concern that he could be financially responsible for any child resulting from the pre-embryos. This issue has not been squarely presented for our disposition, and because we cannot render an advisory opinion, we make no findings on the matter. We note only that this decision should not be construed as a ruling on Jacob's legal status under any applicable parentage or child support statutes. We see no basis in the record why Jacob would be precluded from seeking a legal declaration of his parental status. See 750 ILCS 40/3(b) (West 2012) ("The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife shall be treated in law as if he were not the natural father of a child thereby conceived.")).

I think this analysis is, on balance, persuasive, though (for reasons I gave above) I think that it's much better if these matters are clearly spelled out in a contract at the outset, so that a court need not balance the parties' emotional concerns this way.