Szafranski v. Dunston
2013 IL App (1st) 122975
| Ill. App. Ct. | 2013Background
- In March 2010, Dunston was diagnosed with non-Hodgkin’s lymphoma and anticipated infertility due to chemotherapy.
- Szafranski agreed to donate sperm to create pre-embryos with Dunston’s oocytes for potential biological children.
- The couple completed an Informed Consent for Assisted Reproduction outlining that both partners’ consent was required for use of embryos and that disposition would follow court decrees upon dissolution.
- A co-parent agreement was drafted (but never signed) stating the parties would be co-parents and that Dunston would have sole control of eggs and disposition upon separation; Szafranski later performed by providing sperm to create eight eggs, with three pre-embryos surviving.
- The relationship ended in May 2010; Szafranski sued in August 2011 to prevent use of the pre-embryos, while Dunston counterclaimed for sole custody/control and specific performance.
- The circuit court granted Dunston summary judgment enforcing custody/control of the pre-embryos; the appellate court remanded to apply the contractual approach rather than the balancing approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the proper governing approach to pre-embryo disposition?”, | Szafranski argues for privacy/liberty rights requiring his consent; contract/no agreement questions preclude unilateral use. | Dunston argues for contract/balancing theories; the agreements or implied agreements empower her to use the embryos. | Contractual approach governs; remand to apply contract analysis. |
| Did the informed consent or co-parent agreement create a binding duty on Szafranski? | He asserts no binding obligation without his signature; consent cannot be inferred to force parenthood. | The consent and co-parent agreement evidence mutual intent to govern disposition; Szafranski performed his primary obligation. | Contracts govern disposition; remand for contract-based resolution. |
| Do US or IL constitutional rights require contemporaneous consent to use the pre-embryos? | Right not to be a parent under US/IL constitutions warrants Szafranski’s consent before use. | Constitutional rights do not override valid advance agreements; balancing/contract approach controls. | No constitutional right to compel contemporaneous consent defeats contract/balancing framework. |
| Should the court apply balancing or enforce existing agreements where no agreement existed? | Without an agreement, Szafranski should prevail to avoid compelled parenthood. | In absence of agreement, the court should balance interests or enforce the contract to respect autonomy and infertility claims. | Contractual approach preferred; remand to apply it; balancing considered only if no contract. |
Key Cases Cited
- Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998) (presumption of validity and enforcement of progenitors’ advance directives regarding embryos)
- In re Marriage of Dahl, 194 P.3d 834 (Or. Ct. App. 2008) (contractual approach honoring nonbinding/initial agreements with disposition to wife when applicable)
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (presumed validity of agreements regarding disposition, then balancing when no agreement)
- Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006) (public policy and enforceability of embryo disposition agreements)
- Litowitz v. Litowitz, 48 P.3d 261 (Wash. 2002) (contract governs disposition; long-term storage considerations)
- A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000) (public policy against forcing one donor to become a parent; limits of enforceability)
- J.B. v. M.B., 783 A.2d 707 (N.J. 2001) (balancing approach after lack of clear agreement; protects right not to procreate)
- Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012) (balancing approach for disputes without advance agreement)
- Witten v. Smith?, 672 N.W.2d 772 (Iowa 2002) (adopted contemporaneous mutual consent approach with right to change mind before use)