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Embryo disposition disputes in Illinois post-Szafranski: clarity remains elusive

Legal observers (at least those whom I know personally) were hoping that the Szafranski case would provide greater clarity as to what legal standard Illinois court would adopt in embryo disposition disputes. Unfortunately, the latest ruling of the Illinois appellate court may not be as “clear” as one would have hoped.


The basic facts pertinent to this discussion are as follows:

Ms. Dunston and Mr. Szafranksi have been involved in an on-and-off relationship. One day, Ms. Dunston finds out that she needs to resort to IVF to cryopreserve her oocytes or embryos. She calls Mr. Szafranski at work to ask him whether he would be kind enough to provide his sperm to fertilize the collected oocytes. Mr. Szafranski agrees on the spot, which happens to be his workplace bathroom. Subsequently, Ms. Dunston’s oocytes are fertilized with Mr. Szafranksi’s sperm and a few resulting embryos are cryopreserved. Ms. Dunston and Mr. Szafranski seem to have had no substantive discussions about the need for mutual consent to the future use of these embryos.

Later on, when Ms. Dunston seeks to use the cryopreserved embryos, Mr. Szfaranksi objects. Ms. Dunston sues to gain full custody of the embryos, and Mr. Szafranski argues that although he consented to providing his sperm, he never agreed to the use of the embryos by Ms. Dunston without his contemporaneous consent. Ms. Dunston counter-argues that Mr. Szafranski’s consent to provide sperm to produce the embryos was tantamount to his consent to the future use of the embryos by Ms. Dunston.

However, there is one important circumstance in this story that cannot be overlooked: the very reason Ms. Dunston decided to undergo an ART treatment was that she had been diagnosed with lymphoma and the imminent oncological treatment would have likely rendered her infertile. Therefore, the cryopreserved oocytes or embryos would have arguably been Ms. Dunston’s last and only opportunity to have her biological children.

The Court’s Dilemma

Embryo disputes never present easy-to-answer questions and the Szafranski case was not an exception. Should the agreement the couple made to create embryos be deemed a valid and enforceable contract? If yes, then what were the terms of that agreement with regard to future embryo disposition of the cryopreserved embryos? Is there any room for Mr. Szafranski to change his mind about becoming a father (at least biological)?

Szafranski I - the new rule is announced.

Against this unusual backdrop, the Illinois appellate court had to adopt a rule to resolve embryo disposition disputes. According to the court, “the best approach for resolving disputes over the disposition of pre-embryos … is to honor the parties’ own mutually expressed intent as set forth in their prior agreements.” (See Szafranski v. Dunston, IL App (1st) 122975, ¶40 (June 18, 2013), or Szafranski I, which can be found here). “Where there has been no advance agreement regarding the disposition of preembryos”, the court added, “then the relative interests of the parties in using or not using the preembryos must be weighed.” (Id. at ¶42).

At this point, the rule seems pretty straightforward: find whether there was an agreement reached by the parties regarding the future disposition of cryopreserved embryos; if there is an agreement - follow that agreement; if there is no agreement - balance the mutual interests of the parties.

The case was remanded back to the circuit court, which was ordered to apply the newly adopted rule to the facts of the dispute. The court did so, and held that Mr. Szafranski’s uni-syllabic “Yes” to Ms. Dunston’s telephone request to provide his sperm for the ART treatment resulted in the formation of a valid, enforceable agreement to produce cryopreserved embryos. Moreover, according the court, this “Yes” to create embryos was also a “Yes” to the future use of the embryos by Ms. Dunston without Mr. Szafranski’s say-so.

However, the circuit court did not stop here in its analysis and application of the Szafranski I rule as the rule was worded. Despite its finding that there was an agreement to create embryos (which, by default, became an agreement that Ms. Dunston could use the embryos in the future without Mr. Szafranski’s consent), the circuit court went one step further and analyzed the dispute by balancing the mutual interests of the parties in using or not using the cryopreserved embryos. The result of that analysis was to award the embryos to Ms. Dunston, because those embryos represented her only chance of having biological children due to her alleged infertility (I use the word “alleged” intentionally - this was a claim made by Ms. Dunston, but the appellate court’s opinions refer to no evidence that the oncological treatment actually rendered Ms. Dunston infertile).

Not suprisingly, Mr. Szafranksi appealed.

Szafranksi II - the “admirable job” of the trial court affirmed.

Reviewing the circuit court’s holding on appeal, the appellate court is rather unfazed that the lower court seemingly modified the rule established by the appellate court in Szafranksi I. (See Szafranski v. Dunston, 2015 IL App (1st) 122975-B (June 12, 2015), or Szafranski II, which can be found here).

Recall that the rule was to follow the parties’ prior agreement on the future disposition of the embryos or to balance the mutual interests of the parties only if there was no such prior agreement. The trial court’s analysis, now affirmed by the appellate court, is to balance the mutual interests regardless of the finding of a prior agreement.

This turn of events begs the question: what is the Illinois rule for embryo disposition disputes after Szafranski II? Suppose the next Illinois case presents a fact pattern where there is a prior agreement, but the interests of someone in Mr. Szafranski’s position outweigh the interests of the other party? Is there room for an argument that courts should follow the “regardless of the prior agreement” rationale affirmed by the appellate court in Szafranski II? I would venture to say that there is.


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