Who Gets To Keep The Frozen Embryos?

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.


21 responses to “Who Gets To Keep The Frozen Embryos?

  1. Let’s say the original agreement was that he’d have no part in raising the child and that was tine with him at that point in his life but he no longer wishes to have offspring that he will not raise and be responsible for; he should not be forced to have offspring that he will not be raising himself. Or maybe he is in a relationship with someone else now and would prefer to have and raise children only with that person; he should not be forced to have children with this woman against his will. He did not get this woman pregnant and he is not attempting to exert control over her body such as to force an abortion or conversely to prevent her from having one. He is trying to exercise sound family planning and trying to prevent an unwanted pregnancy at this time in his life. He is practicing responsible reproductive behavior and trying to prevent a pregnancy from occurring when he is not prepared to raise the resulting child.

    This is like a promise to have children with your spouse yesterday but today you find out they’ve cheated on you and stolen money from your family so you change your mind and decide to leave them. The fact that her biological clock is ticking and she won’t have time to find someone else to have a child with is not your problem you don’t have to keep your promise and reproduce with her, you can walk away even if it means that she won’t ever have a biological child.

    He is under no legal obligation to produce children with anyone. It’s his body and his choice to do whatever he can to prevent an unwanted pregnancy from occurring. If he gets a woman pregnant then he has no right to interfere with her decisions about her body and if a child is born that child will be his offspring and will be his responsibility unless he is classified as a donor in which case he won’t have responsibilities and maybe that is not OK with him. It really does not matter whether he’d be accountable for raising his offspring or not, it’s still up to him whether or not to have offspring in the first place and its still up to him to decide whether he wants to raise all his offspring or not.

    Every contract has an exit clause. There may be financial penalties for backing out but it is very rare for a judge to force specific performance rather than to award damages because its a violation of the 13th amendment right not to enslave yourself. Forcing someone to keep a promise is like trying to own their body or soul. There is no legal requirement to reproduce and so nobody should get themselves into the position where they think they can rely upon another person to have offspring with them.

    I think it is very sad for this woman that she cannot have offspring and I think privately on a personal level she has cause to be pissed off about it. But we get pissed off by jilted lovers all the time but it’s not illegal to dump someone. She does not own him or his body and she should have no superior right above and beyond the rest of us to force someone to have children with her against his will. He was going to get her pregnant at one time in his life and he took steps in preparation for that but now, he’s changed his mind and he’s not breaking any laws or violating her rights by opting out of the situation. She should not have gotten herself into a position where she thought she could rely upon him to keep a promise that even she herself has the right to break. What if he were trying to stuff the embryo’s in her and force a pregnancy that she wanted to prevent? Force her to have offspring against her will? Or Alternately hire a surrogate to carry the pregnancy to term?

    This woman is asserting an imbalance of power due to her physical condition. That because she is sick, he must loose his reproductive freedom and bodily autonomy. She now has more power than he does. Currently she has the same right to prevent pregnancy as he does. He cannot force her to become pregnant against her will and he cannot force her to reproduce by hiring a surrogate to carry and deliver their offspring and he has the same right to not be forced to reproduce. She is asserting that she should have the right to force him to reproduce without granting him equal rights to force her to reproduce against hers.

    It is an outrageous injustice this decision.

    • Clearly you disagree with the decision, but you’re covering a lot of ground. It’s worth noting that there are at least three ways of approaching this problem.

      One is to say that people are bound by their agreements–so whatever they said at the outset controls. That’s a pretty straightforward approach and treats this like any other contract. (I’m not saying good or bad–just noting the similarity.) (FWIW, the court here used this method and decided there had been such an agreement.)

      A second approach is to say that people retain a right to consent/reject up until the time the pre-embryo is used. I think this amounts to saying you can have second thoughts up to that point. This means that even if you have the agreement described above, one cannot actually rely on it.

      A third approach is to say that agreement or no, you look at the pull of the equities. Who has a better claim? In this case the court concludes that the fact that this is the only chance she has to have genetic children gives her the stronger claim.

      There are things to be said for each of these approaches. One thing that strikes me: She did count on his participation. If he said “no” she might have gone out and sought another sperm provider. I’m not saying this is decisive, but I think it is worth noting.

      I won’t respond in detail to the bulk of your post. Some things are factually wrong, but mostly it strikes me as a string of assertions in support of approach 2–which people can accept or reject for themselves.

      • I was reading up on this case a bit when I saw your post, and the woman had planned to use an anonymous donor until the boyfriend (now ex) volunteered to give his sperm instead. When they broke up some of the evidence at trial about the embryos was an email to him where she was heartbroken that he was trying to keep her from using the embryos after he convinced her not to use a random donor.

      • Let’s cover what is wrong. Are you saying that judges will require specific performance when someone breaches a contract? Am I wrong in stating that the are reluctant to do so because of the 13th amendment and that most often they will award damages? Am I wrong in stating that contracts always have an exit clause and damages and what not? Cause I can go get some supporting documentation that I base that statement on. I can go get some standard egg donor agreements that talk about penalties if she backs out and changes her mind or decides she wants the eggs or embryos back. I can go get some scholarly articles on how the penalties are largely unenforceable and that she has every right to pull the plug on the whole operation at any time and that it really is a gamble on the part of the people footing the bill because it is entirely her body and her choice right up until the embryo is implanted into the other woman’s body. And that is just the pregnancy part. They really go into it on the parental obligation stuff.

        Please tell me where exactly I’m wrong about what I said. I’m basing my outrage on my understanding of how the law typically works. It is a laymans understanding yes. But I have read everything I can get my hands on about this topic I want to understand. I don’t want to sound foolish Julie. I really try to say stuff that I can back up

        • Judges do sometimes require specific performance of contracts, yes. They are reluctant to do so, yes. But they do it sometimes when something unique is at stake–so that just providing money won’t do. In general, you won’t see contracts for personal services enforced via specific performance. Contracts don’t always have exit clauses–you can write a contract how you want to write it.

          It’s easy for me to see how in this case a court might say that he knew what was at stake when he made the agreement–that this was her only chance to preserve her own genetic material. He was free to say yes or no. Had he said no, she had alternatives–in this case, donor sperm from a bank. He said yes and so she gave up alternative. Now there is no suitable substitute and no amount of $$ can substitute for the genetic material. So the contract is enforced as written. Note the importance placed on the genetic connection (hers) which isn’t what I’d say, perhaps. But there you are.

          • So how then is this different than forcing an egg donor to let them keep the eggs or embryos if she’s changed her mind? Or forcing a wife to have offspring if she changed her mind? Or forcing parents to give their child up for adoption per contract signed prior to birth if after birth they changed their minds? They are forcing this man to have a child with a woman against his will that he won’t be party to raising or maybe he’ll be forced to pay support who knows.

            Do you believe that people can sell or give their rights and freedoms as gifts to other people? Do you believe that someone can own another person’s right to vote say for instance if they paid someone and they are counting on being able to vote on their behalf in order for their candidate to win the election? Or buy my right to free speech forever and have a court enforce that so that I could never say anything that the buyer of my rights did not want me to say? How far does this go? Certain things should not be owned sold bought or gifted and one of them is bodily autonomy. The whole donor industry holds together because donors are voluntarily not changing their minds and withdrawing consent. Are you suggesting that if they volunteer they can never change their minds. Not just him but all of them and does your answer to their freedom change circumstantially? Really?

            • If he had provided sperm that had been frozen on its own and the woman here was wanting to use the sperm, then I think he’d probably win. At the very least, you’d see a different argument. She cannot make the same appeal about her unique need for his sperm. the thing here is that it is inextricably bound to her last eggs.

              If a woman is pregnant, then she can raise a different argument–one about her right to control her body. Thus, a pregnant woman can decide whether to continue the pregnancy or not and no one can interfere with her choice. And that is true without regard to whose genetic material is involved. Again, you see different factors from in the frozen embryo case. The key difference here is that the embryo/egg/sperm isn’t in your body anymore, I suppose.

          • She should be awarded damages in an amount totaling whatever it cost her to create those embryos and store them and her attorney’s fees and any other associated costs like travel to and from court and what not. She put forth money relying on his promise. He understood that she was putting out money and now he’s changed his mind I do think it’s reasonable for him to reimburse her for her expenses. I don’t think its reasonable to take away his freedom.

            • I understand your thinking but the competing rationale would be:

              1. There is no substitute for being able to use her own genetic material. Money cannot make up for this lost. It’s a unique opportunity. (It’s not that I particularly like this argument, but many have forcefully argued here that the genetic connection is particularly important. From this point of view, giving her the chance to use someone else’s genetic material isn’t a substitute for using her own.)

              2. He is an adult and made a decision. He knew what he was doing at the time. He knew she would rely on his decision. Thus, he cannot now change his mind.

              I think the combination of these two things gives her a particularly strong case. While 2 is always true when a person has provided genetic materials for frozen embryos, judges might be more forgiving if the only cost is that the other person has to start over. But if the other person CANNOT start over, then some would say it changes the balance. Indeed, since he specifically knew that his sperm would be bound to her last available eggs, there’s a stronger than usual case that he is bound to honor his commitment to her.

              Again, I’m not saying I endorse all the steps in the logic myself–but I want to be clear about what the argument looks like.

              As for his appeal to freedom– the specific argument on that point would be something like this: Granted he had freedom–he could have said “no.” He said “yes” (thereby exercising free choice) and she relied on him. He no longer has the freedom to change his mind.

              • Well when else would a person not be able to change their minds about something when there is no law compelling them to do it in the first place.
                People rely on promises all the time and there is no other reasonable alternative. We are talking about someone’s control of their own body and reproduction. This is not small stakes. Give some other examples of where your not allowed to change your mind about performance of a contract. Damages rarely cover it whatever it is. Can you provide other examples where someone might be forced to reproduce against their will? Originally having promised but later changing their minds because the anatomical gift act and the policies of universities are clear the person has control over what their donation is used for and can withdraw consent at any time. I understand she’s got no other alternative to have a biological child but that should not mean that he’s forced to have a child with her just because he felt like it at one time. It’s crushing heartbreaking and may feel unfair. He could even win the jerk of the year award but to make the man have offspring with her when he has changed his mind is really crossing the line and setting a bad standard.

                What if it were him he made an embryo now had cancer treatment and he wants the embryos to put in his new girlfriend or a surrogate and she does not want him to? Should she be forced? I don’t understand why her circumstances impact his freedom. But to make it even can he use some of the embryos and maybe go off and raise one of her kids by himself? How about make one of their kids and give them up for adoption without her imput? Raise them with a stranger on the other side of the world?

                • As to the first point—any time a court orders specific performance of a contract (and they do this, albeit not nearly as commonly as they order payment of money) the court is essentially saying “sorry–you cannot change your mind. you must follow through.” It’s not unknown in law. To some degree the question is the extent to which money can compensate. If you agree to sell me a specific house and then change your mind, you might be compelled to actually sign over the house–because it is a unique thing. Won’t always be, but sometimes….

                  But this actually isn’t a specific performance case because there actually isn’t anything he is being ordered to do. FWIW, no court would ever direct him to produce sperm for her use–even if he had promised he would. (And I cannot see how it would even come up that she had relied on him–there are too many other sources of sperm.) Similarly, ordering a woman to become pregnant or to carry a pregnancy is a far cry from this–and would never be permitted (at least under US law.) If he had embryos he wanted to use, he would be expected to find a willing surrogate to carry them.

                  • Also, because it is even easier to freeze sperm than it is to freeze embryos, it is very unlikely that it would ever come up. Even if IVF had been done to freeze some embryos, it is almost certain that some sperm would have been frozen separately in case the embryos did not lead to a pregnancy, before a man had medical treatments that would leave him infertile, because it can be pretty much produced on demand without any drugs and has a higher survival rate after being thawed.

                  • Right but over his ex partner’s objection to reproducing with him and having offspring together?

                    They are ordering him to reproduce and have offspring with her against his will. That was what he originally agreed to do and he took the initial steps in that direction toward that goal but never completed the process. Now he does not wish to complete the process. He does not want to reproduce with her does not want offspring with her. That in and of itself should be enough, whether he has a preference on being the legal father of all his offspring then is another kettle of fish.

                    Your looking at it like he is not being forced to do anything: he came in a cup several years ago and his work is done now, go away we don’t need you. All he did so far was make a promise that he wants to break and start a process he does not want to finish. The big thing he has do do is reproduce and have offspring. Granted once he gets a woman pregnant its out of his hands but he should have the option of not having kids with her if he does not want to. I mean that is a pretty big deal you can’t pretend they don’t exist and have that be real.

                  • This may be where our different points of view really force us to agree to disagree. I think there is a difference between ordering a man to produce sperm (on the one hand) and allowing the ex girlfriend to use the pre-embryos (on the other).

                    In the first case (produce sperm) he is being ordered to do something–to produce sperm. While courts do sometimes order a person to do a thing, I don’t think they can or should or would order this. (There are several reasons why, actually.)

                    In the second case (using the embryos) he isn’t being ordered to do anything. (This is where we differ.) His actions are completed when he turns over the sperm. While in general he may have some control over what happens to the sperm, he exercised his control when he agreed to the creation of the pre-embryos.

                    Your comment highlights our difference, I think. As you say, I don’t think he is being forced to do anything, save perhaps to abide by the agreement he made. His role in the process is (in my view) complete. No further action on his part is required. You see using the pre-embryos as forcing him to do something at the present time. Neither of us is going to budge the other on this, right?

  2. Interesting case.

    My partner and I addressed this issue in CA several years ago. We had a pre-dup (similar to a prenuptial agreement except it was for folks entering into a domestic partnership since same-sex marriage was not allowed at the time). In it, we stated that if we separated I would gain control of the frozen embryos and he renounced all parentage rights. The lawyers weren’t 100% positive this would have absolved him of legal parentage responsibilities but both his attorney and my attorney felt it probably would. (Seems impossible to get an attorney to ever say something is 100% full proof.)

    As I say this was a pre-dup so our relationship wasn’t dissolving we were simply trying to iron out what would happen if we did ever separate.

    Anyway, as it turns out, two years after signing the pre-dup we both decided that our family was complete and made the mutual decision to donate the embryos.

    So, that’s my personal experience with the issue.

  3. I really do wish that this guy felt better about this and I’m glad this woman will have the opportunity to become a parent. I can’t say that I am completely comfortable with the decision. Yes, I do believe that people have the right to become parents, even biological parents (although, if biology should not matter to children, it should not matter for adults). However, I can’t lie and say that it’s fair to force a man to become a father to children from a woman he doesn’t care for. If children are born, he’s going to be in an awkward situation.

  4. The Natalie Evans case in the UK is very similar to this one and the court ruled that the embryos should be destroyed based on the fact that IVF treatment requires both parties’ consent and her ex partner had withdrawn it. It went all the way to the European Court of Human Rights and they upheld the UK court’s decision on the same grounds. So it’s very interesting to see the way this is playing out in the US, and the reasons for it.

    (Court docs and links to the judgement here, for the interested: http://swarb.co.uk/evans-v-united-kingdom-echr-7-mar-2006/ and the EU judgement contains references to legal cases in the US and EU.)

    By the time an embryo has implanted and a woman is pregnant, the foetus is part of her body, and can’t be removed without an outrageous degree of physical intervention if she doesn’t want to have an abortion. There’s no guarantee that embryos will ever produce a pregnancy which is why in my mind there is a difference in status. The potential is there, but it’s not inevitable.

    You have to wonder why the clinic didn’t insist that they have counselling – or perhaps they did and just didn’t believe they would split up. My heart goes out to Natalie Evans but I think the court made the right decision.

  5. Julie,

    I may be wrong but isn’t your usual stance that a sperm ‘donor’ is simply donating genetic material? If yes, this statement of yours seems contradictory “But the man who provides sperm for IVF is actually intending to procreate.” I can’t honestly see any distinction between this man, and one who donates to a sperm bank for it to be sold to someone who wants to create a child from his sperm and someone’s egg.

    Both men who provide sperm intend for a child to be created with it.

    • You may notice that I didn’t say a lot about what I thought about this case. It’s a bit of a puzzle for me, really. The strength of her claim is this unique opportunity to be a genetic parent–something I myself don’t place such a value on.

      I think what I meant to capture in the comment I offered is that this man provided his sperm with the knowledge it would be used by this woman to create potential children she would then raise. He also knew (or should have been able to figure out) that she was going to be relying on this–she wouldn’t have second chances. That makes me less willing to let him change his mind about the agreement he made.

    • Julie has acknowledged before that the average sperm door who provides sperm does so intending to procreate. I don’t see this statement of hers as being contradictory to her normal stance. Her normal stance is that donors have no parental rights at birth and I don’t see her position here as differing from that. Since most donors don’t withdraw consent and recall their sperm, she rarely talks about the issue of mind changing and backing out. It’s clear she’s of the mindset that the person who has the sperm owns it and there’s no take backs it belongs to them and they own the right to reproduce the donor and he’s not allowed to change his mind. But that is not what the anatomical gift act says. All the universities have bylaws about gamete donation for research or reproduction and they are allowed to withdraw consent at any time up until its actually in use in someone’s body. It’s all voluntary participation in donation is done voluntarily and a person has the right to decide they don’t want to do it any more.

      Your average donor does not sell his sperm. Remember? He’s paid for his time in voluntarily donating his sperm for use in research or reproduction and he has the right to withdraw his consent at any time. That is what makes this case and the outcome so alarming. They are acting like reproductive freedom is something that can be waived or the rights bought and transferred.

      • I would be supportive of an agreement that allowed a person who had provided gametes (egg or sperm) to return to wherever they were stored and ask that the gametes be removed and destroyed. I actually don’t know if this is the policy at sperm/egg banks or not. Perhaps it is at some and not at others? It might be that the bank would expect to get back the money they laid out in order to obtain the gametes. That also might be fair.

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