From time to time there are disputes about the disposition of frozen embryos. (This has come up here before.) If you think about it, it is not hard to see why. Anyone using IVF creates embryos. You almost always create more than one or two for a variety of reasons. So you don’t end up using them all. Maybe you think you’ll use them later. Maybe you’re not sure. In any event, the common practice is to freeze them. That defers the decision about what to do with them.
Disputes arise when two people who created the embryos (usually each contributing their own genetic material, but not always) split up. Who gets them? This seems to turn in part on what the people want to do with them. In general, in a string of early cases, the person who wanted them destroyed rather than used prevailed. No one, it was said, should be forced to procreate.
(That’s not an entirely satisfactory logic to me–if a man and a woman have sex and she gets pregnant, she can certainly decline to have an abortion and the man will procreate. Of course, I’m assuming here that he voluntarily engaged in sex and so maybe you think he assumed the risk of procreation? But the man who provides sperm for IVF is actually intending to procreate. Perhaps the better way to think about it is that he has a right to change his mind unless the woman’s superior right to control her own body bars him from doing so.)
Anyway, there’s a recent case from Chicago that does not fit this pattern. Karla Dunston and Jacob Szafranski were in a romantic relationship in 2009. She was diagnosed with cancer and it was understood that the treatment for the disease would destroy her fertility. At that time it was impossible to just freeze her eggs. (Today this can be done.) But you could freeze embryos. So Karla asked Jacob if he would provide sperm for this purpose. As far as I can tell, there was not an intention to coparent. He agreed (orally, not in writing) to help her by allowing his sperm to be used to create the embryos which would then be frozen.
The couple broke up and 2010 and Jacob decided he wasn’t happy about what he’d done. He wanted the embryos destroyed. But by then, Karla had no other way of having a genetically related child but via those embryos, so she resisted.
Last year and appellate court in Illinois issued an opinion in the case. It’s pretty exhaustive, reviewing all the relevant law. The court concluded that the case should be resolved in accordance with whatever agreement the parties had made earlier. If there was no agreement, then the court below was instructed to balance the competing interests.
The news story I linked to earlier recounts the lower court’s execution of the instructions from the appellate court. The trial court found both that the oral agreement favored Karla and that Karla’s rights outweighed Jacob’s.
There will be an appeal and the embryos will remain frozen during that time.