Injury Laws: Couple goes through IVF, breaks up. Who decides what to do with the fertilized ova?

The Appellate Court of Illinois chimed in a few weeks ago, in Szafranski v. Dunston, and summarized the precedents. Here’s the fact pattern, which is apparently not unusual: Man (Jacob Szafranski) and woman (Karla Dunston) were dating; woman learned that she had cancer and that the treatments would make her infertile; she wanted to have children, so she and the man went through IVF; but then they broke up. She now wants to have one of the fertilized ova implanted, but he doesn’t. Concern about child support apparently isn’t the main problem. Although the man’s lawyer tells me that “[i]t is unclear” and that “[t]he court mentioned but did not rule on that issue,” according to the woman’s lawyer:

[W]e have always been unequivocal with Mr. Szafranski and the Court that Karla wants absolutely nothing from him in the way of support. His attorney has argued that rights to support belong to the ultimate child and not Karla, so she is unable to waive them. However, we have expressly requested that Mr. Szafranski be declared a sperm donor under the Illinois code, which all parties agree would certainly relieve him of any support obligations to any resulting child. His response: he is not sure whether he would want to be a sperm donor or the child’s legal parent. We have always told him that he can choose either option if he will simply allow Karla to become a mother.

If that’s right, then the real objection on the man’s part — and indeed the objection that the appellate court focused on — is that he doesn’t want to be a father to a child of his and the woman’s, even if he’s off the hook for financial support. The woman, on the other hand, does want to be a mother, and being a mother of a child of hers and the man’s is the only option, since she can no longer produce viable ova.

How should a court resolve the question? As the court notes, different courts have taken different approaches:

Some “enforce contracts governing the disposition of pre-embryos which were entered into at the time of in vitro fertilization so long as they do not violate public policy.” If the parties agree that the fertilized ova can’t be used unless they both consent at the time of the use, that agreement is enforced. If the parties agree that they can be used if either consents, or if just the woman consents, or if just the man consents, that agreement is enforced, too.
Some take the view that “no embryo should be used by either partner, donated to another patient, used in research, or destroyed without the [contemporaneous] mutual consent of the couple that created the embryo,” “contemporaneous” referring to consent at the time of the use, donation, or destruction. This “allow[s] a party to change his or her mind prior to use of the pre-embryos.”
Some take the view that “courts enforce contracts between the parties, at least to a point, then balance their interests in the absence of an agreement,” with the balancing considering (among other things) whether the party that wanted to use the fertilized ova was no longer fertile, so that these particular ova were the only option for the party to become a biological parent.

The Illinois court went with approach #3, though with a greater focus on enforcing the parties’ contracts if such contracts exist:

Although we acknowledge the concern that individuals may change their minds regarding parenthood during the process of in vitro fertilization, we note that this concern can be adequately addressed in a contract and should be discussed in advance of the procedure. We do not believe, however, that such a concern should allow one party’s indecisiveness to plague a process, fraught with emotions and lifelong repercussions, with uncertainty at another’s expense….

In addition to holding that agreements between the parties should be honored, we further hold that where there has been no advance agreement regarding the disposition of pre-embryos, “then the relative interests of the parties in using or not using the preembryos must be weighed.” Although we acknowledge that this is not an ideal way to resolve a dispute implicating reproductive rights, we note that “what is even worse … is to give a possibly antagonized ex-spouse the power to either block parentage or to name the price that potential parentage will cost.”

The court rejected the man’s claim that this violated his constitutional right:

Appellant further argues that “his constitutional right not to be a parent means his consent is required for any use of the pre-embryos at the time of their use.” In making this argument, appellant cites federal abortion case law and claims that “the right to an abortion is a semantic recasting of the right not to be a parent.” However, he claims that

“unlike in the abortion context, in the context of cryopreserved pre-embryos the man and woman are in equal positions. And with this equality of positions comes the equality of the respective constitutional rights of a woman and man to control the use of the pre-embryos. As a result, the constitutional right not to be a parent means the consent of both the woman and the man is required for any use of the pre-embryos.”

In other words, the appellant has essentially derived a right for him to unilaterally prohibit the use of a pre-embryo created with his sperm and appellee’s egg, without regard to appellee’s interests in the pre-embryo, from the fact that a woman has a constitutional right to terminate her pregnancy. This argument is without basis. We note that individuals may waive their constitutional rights, whether by contract or otherwise, and that the right to terminate a pregnancy, itself, is subject to a balancing of the interests involved. For instance, in Planned Parenthood of Central Missouri v. Danforth (1976), the Supreme Court noted:

“The obvious fact is that when the wife and the husband disagree on [the decision to terminate a pregnancy], the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.”

Similarly, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court addressed the interests of the State with respect to termination of a pregnancy:

“It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

We thus find no constitutional obstacle to honoring an agreement regarding the disposition of pre-embryos, and where there has been no advance agreement regarding the disposition of pre-embryos, then to balance the parties’ interests in the event of a dispute.

The court sent the case back down to trial court, to gather further evidence as to whether there was an agreement on the subject (a matter that’s in dispute) and presumably to consider how the interests should be balanced if there was no agreement. (The closing paragraph seems to focus on the trial court’s applying “the contractual approach,” which would be #1 in the list given above; but the rest of the opinion makes clear that the appellate court is authorizing balancing if no contract is found.)

The focus on contract seems right to me. These are the very sorts of issues that parties should be able to decide by contract up front, and then rely on that contract. True, people change their minds — and if you want to reserve that right, enter into a contract that lets you change your mind. But generally speaking, once you make a promise, and especially when others act in reliance on the promise (for instance, a woman goes through chemotherapy after creating fertilized ova with you, where absent your promise she could have gone to a sperm bank and created fertilized ova that way), you should be bound to that promise.

To be sure, there are exceptions. Indeed, there are certain promises that courts won’t enforce when a party changes his mind: a promise to sell oneself into slavery won’t be enforced; a promise to provide personal services won’t be enforced through a court order, though a court might award damages for breach of the promise; a promise to have sex won’t be enforced (even if the promise wasn’t in exchange for money, and thus isn’t itself criminal prostitution). The view of the legal system is that it would be too cruel to force people to engage in certain behavior — chiefly certain behavior involving their own bodies — even if they had once promised to do it.

But I think this needs to be a limited exception, and one that is generally not applicable when the people’s physical actions are already complete, and the only question is who gets to do what with the product of those actions. Having to have a child out there whom you biologically fathered is not so cruel, I think, if you at one point agreed to create such a child, even if you have since changed your mind.

There are also certain promises that courts won’t enforce because they affect third parties. If, for instance, the legal system took the view that life begins at conception, then not using the fertilized ova could be condemned as a wrong to that unborn child; but of course, rightly or wrongly, that is not the legal system’s view. Likewise, if the legal system took the view that it is better for a child never to be born than to have only one parent raising it, then using the fertilized ova in a situation where the man has said he doesn’t want the child might be seen as a wrong to the child; but again, that is not the legal system’s view.

So it seems to me that enforcing the contracts, if there are such contracts, is the best solution here. I’m not sure about “balancing” in the absence of contracts, especially when the things to be balanced are so subjective and hard to compare against each other; it would be better, I think, to have a clear rule up front and then have parties contract (or not) with an eye toward the rule. (Compare, for instance, the distribution of a person’s property when he dies. We generally enforce the will and, in the absence of a will, distribute according to a rigidly defined scheme, rather than “balancing” the prospective heirs’ interests in the property.) At the same time, I acknowledge that where no contract is present, courts do sometimes try to figure out the best solution on a more case-by-case basis.

In any event, this struck me as an interesting case, so I thought I’d pass it along.