Cancer Survivor Prevails in Disputed Embryos Case

Recently, the Supreme Court of the United States refused to take up a widely-publicized Triage Cancer Blog Supreme Courtcase, Szafranski v. Dunston, involving disputed embryos.

Karla Dunston, a doctor, was diagnosed with non-Hodgkin’s lymphoma in 2009. Because her treatment presented the risk of infertility, Ms. Dunston took steps to preserve her fertility. She asked her boyfriend, Jacob Szafranski, to help her by allowing her to use his sperm to create embryos before she had to start her cancer treatment. He agreed, and they went to a fertility clinic where she underwent a cycle of IVF and successfully froze three embryos.

Ms. Dunston completed her cancer treatment and went into remission. However, she was left infertile, and the embryos that were frozen are now her only option for having biological children. Unfortunately, in 2010, the couple broke up, and in 2011, Mr. Szafranski sued to prevent Ms. Dunston from using the embryos to have a child.

This case presented complicated issues about embryo disposition that state of Illinois had not addressed before, and it highlights subjects that cancer patients need to think through when considering fertility preservation. It isn’t clear how courts will decide if one person can use their embryos to become a biological parent if the other person involved objects. Should the embryos be destroyed? Kept frozen until agreement is reached? Given to whomever the court believes has more at stake?

Before Szafranski, cases in other states had been decided in different ways, but no clear approach had been established. Some states looked at whether there had been a contract formed about the disposition of the embryos when they were created, and strictly upheld any such agreement between the parties, even if circumstances and wishes had changed. Some applied a “balancing” test where the court weighed the interests of each person to decide the best outcome, even if there had been a contract. One court created a standard called “contemporaneous mutual consent,” which basically said that even if the couple agreed when they created the embryos, they had to also be in agreement at the time that the embryos were to be used or destroyed. This approach essentially allows either party to change their mind and have “veto” power over the other.

This case worked its way through the Illinois courts, and ultimately, the Illinois Court of Appeals adopted a hybrid approach. It said that if the facts showed that a contract – oral or written – existed, this should be controlling. But absent a valid contract, a trial court could consider the individual facts of the case and apply the balancing test. The trial court had found that when Ms. Dunston asked, and Mr. Szafranski agreed to create the embryos, a valid oral contract had been formed. That discussion included an understanding that Ms. Dunston would be able to use the embryos after cancer treatment in order to try to get pregnant, since that was the entire purpose. The court rejected Mr. Szafranski’s argument that an informed consent document from the fertility clinic (which stated that the embryos could not be used or disposed of unless both parties were in agreement) changed their verbal agreement.

The Supreme Court’s unwillingness to review this case means Mr. Szafranski cannot block Ms. Dunston from using the embryos to try to become pregnant. But it also leaves the law around disputed embryos unsettled, creating uncertainty about what types of agreements either between couples or between couples and their fertility providers will be recognized as binding, or whether compelling interests of one party will tip a court’s ruling in their favor.

Interestingly, this case is only the second of twelve disputed embryo cases in which the person seeking to have a biological child prevailed over the person seeking to avoid parenthood. In both cases, for the infertile female cancer survivors who won, the disputed embryos represented their only possible chance at biological motherhood. In the words of the Illinois Court of Appeals, “Karla’s interest in using the pre-embryos is paramount given her inability to have a biological child by any other means.


Joyce Reinecke, JD, is the Executive Director of the Alliance for Fertility Preservation, a 501c3 charitable organization whose exclusive focus is fertility preservation for cancer patients. Joyce is also a cancer survivor who became a parent after undergoing fertility preservation. A version of this blog originally appeared here.

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