by Craig Klugman, Ph.D.

Girl meets boy. Girl and boy fall in love (or at least into like and lust). Girl receives cancer diagnosis. Girl and boy make some frozen embryos. Girl goes into remission. Girl and boy break up via text message. Girl wants to gestate the embryos. Boy does not want to be a father.

The above story is the series of events that led to a courtroom in Illinois earlier this month. Dr. Karla Dunston is the woman who as a result of her cancer treatment cannot have a child other than with the frozen embryos. The father is Jacob Szafranski, a nurse, paramedic & firefighter. The judge ruled that the verbal contract the couple had made when the Szafranski agreed to father embryos with Dunston was binding and that the woman’s wish to procreate outweigh the man’s desire not to procreate. What’s unique about this case from previous ones is that the couple here was never married.

In 2010, the couple went to a Chicago fertility clinic and signed a consent form that stated that no embryo could be used without permission of both parties unless there is another contract or divorce decree. An attorney drafted a co-parenting agreement for the couple that stated Szafranski would undertaken any obligations no matter what happened in their relationship and that Dunston would have all control over the embryos. That contract was never signed. In April 2010, both individuals made their gamete donations. In May 2010, Szafranski initiated the break up. In August 2011, he filed suit to prevent Dunston form using the embryos saying that he had changed his mind. Dunston countersued for sole custody of the embryos and won. Szafranski appealed the case.

In 2013, the Illinois Appellate Court recognized that previous rulings in several states have take 3 approaches:

• Contractual approach (advance directive for use of embryos).
• Contemporaneous mutual consent approach – both parties must consent at time of implantation of embryos
• Balancing approach- enforces contracts where they exist and then tries to balance interests of the potential parents.

The Court sent the case back to the county court with instructions to take the contractual view. As mentioned above, last week the county court ruled in Dunston’s favor.

The social impact of this ruling may be significant. In 2012, over 61,000 babies were born through in vitro fertilization. According to the U.S. Department of Health & Human Services, there are more than 600,00 frozen embryos in the U.S. About 27,000 of those (4.5%) are in limbo meaning the patient died, the embryo was abandoned or the couple split.

The personal impact of this ruling is that Dunston can attempt to be a mother. Szafranski may be forced to become a father and because of the unsigned contract, he will likely be responsible for child support and all costs of care whether he knows the children or has a say in their lives. In 1994, John Robertson wrote in Children of Choice of a case in Tennessee where a court ruled that a woman’s desire to use embryos did not outweigh a man’s desire to not be a father but that her desire might outweigh his if she had no other way to achieve parenthood. Robertson’s suggestion is that a couple should create a document for the disposition of embryos in all events including death, divorce/separation and that discusses how decisions to use the embryos should be made.

One could make the argument that the two were not a couple, but that Szafranski was simply a sperm donor. In that case, he would have no say in what happened to the embryos, although in some jurisdictions its possible he would be on the hook for child support.

There are two different exercises of procreative liberty at work here. These embryos are Dunston’s only option for gestating a child with her DNA. Szafranski does not want to have a child and he certainly does not want one with Dunston. The courts ruled that the contract should determine what happens, which may give a legal answer but does not give an ethical one or even a satisfactory one.

Ethically, one could argue that that one person’s right to parenthood outweighs the other persons. By analogy, the many arguments made that ending a pregnancy is solely a woman’s choice would support such a position. One could argue that there is preference in favor of life over nonlife. Thus, Dunston’s position would prevail since she wants to give the embryos the opportunity to gestate (whether she is successful does not matter). These are deontological arguments.

Szafranski’s desire to not be a parent seems compelling and is a more consequentialist view. The outcome of a child, and of being a father, are what he wishes to avoid. Parenthood is not something that should be taken on lightly. As Thomas Murray discusses in Worth of A Child, parents undertake duties and obligations to children. If Szafranski does not want to undertake this responsibility, should a court be able to force him? Did his unsigned contract give away his right to decide whether to be a parent? Or did his act of sperm donation remove that right?

If Dunston had been impregnated through natural means, this would be a debate over support and custody. Or if early in the pregnancy, this case might have been about him wanting an abortion and her wanting to give birth. In this case again, Dunston’s choice would have been given priority.

What if the tables were turned? What if Szafranski had wanted to gestate the embryos (perhaps with a new girlfriend, a new wife with fertility problems, or even with a surrogate) and Dunston did not want to be a mother? Accepting that no one could force Dunston to gestate the embryos, would the preference have been given to his position over hers? In fact, we can test this hypothesis. In 2001 the New Jersey Supreme Court ruled against a man who wanted to keep embryos from his ended marriage so that someday he could gestate them. The Court went with the wife who wanted to have the embryo’s destroyed because she is the one with infertility and he could father a child with someone else.

This leads to two possible conclusions: (1) women have greater procreative liberty than men or (2) the person who is infertile and has no other possibility of procreating trumps the desires of the fertile person. Most likely it is the second that is the theme driving these cases.

Still, the idea that a person can be forced into being a parent is troublesome and this ruling does not feel “right.” Then again, denying Dunston her only chance at being a mother also would not feel “right.” Sometimes, there are simply choices and consequences and no answer really satisfies.