Szafranski v. Dunston

• Decision Date: 12 June 2015
• Docket Number: 1–14–1539.,Nos. 1–12–2975,s. 1–12–2975
• Citation: 34 N.E.3d 1132
• Parties: Jacob SZAFRANSKI, Plaintiff–Appellant, v. Karla DUNSTON, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

34 N.E.3d 1132

Jacob SZAFRANSKI, Plaintiff–Appellant
v.
Karla DUNSTON, Defendant–Appellee.

Nos. 1–12–2975
1–14–1539.

Appellate Court of Illinois, First District, Second Division.

June 12, 2015.

34 N.E.3d 1136

Schiller, DuCanto & Fleck, LLP, of Chicago (Brian A. Schroeder, of counsel), for appellant.

K&L Gates, LLP, of Chicago (Abram I. Moore, Molly K. McGinley, and Sara E. Fletcher, of counsel), for appellee.

OPINION

Justice LIU delivered the judgment of the court, with opinion:

¶ 1 This is the second appeal in a case that requires us to settle the dispute over who is entitled to control the disposition of cryopreserved pre-embryos created jointly by the parties.

¶ 2 In 2010, plaintiff, Jacob Szafranski, and defendant, Karla Dunston, entered into an agreement to undergo in vitro fertilization (IVF) together for the purpose of creating pre-embryos. Karla had been diagnosed with lymphoma and was expected to suffer ovarian failure and infertility as a result of her chemotherapy treatment. During the IVF procedure, Jacob and Karla agreed to fertilize all of the eggs that were retrieved. Jacob deposited his sperm for the IVF and three viable pre-embryos were created and frozen. After their relationship ended, the parties disagreed over whether Karla could use the pre-embryos. Jacob sued to enjoin Karla from using them, and Karla filed a counterclaim seeking sole custody and control over the pre-embryos. Following a hearing on the parties' motions for summary judgment, the circuit court awarded Karla sole custody and control of the pre-embryos and the right to use them to have children.

¶ 3 In its ruling, the circuit court explained that Karla was entitled to use the pre-embryos because her interests prevailed over Jacob's competing interests. Jacob appealed the ruling and this court issued an opinion in Szafranski v. Dunston, 2013 IL App (1st) 122975, 373 Ill.Dec. 196, 993 N.E.2d 502 (Szafranski I ). Following an extensive survey of Illinois law and that of other jurisdictions involving similar disputes, we held that disputes over the disposition of pre-embryos created with one party's sperm and the other party's ova should be settled by: (1) honoring

34 N.E.3d 1137

any advance agreement entered into by the parties, and (2) weighing the parties' relative interests in using or not using the pre-embryos in the event there is no such agreement. Id. ¶¶ 40, 42. We reversed, and remanded the cause with directions to apply this hybrid approach to resolve the dispute and to allow the parties to conduct additional discovery under this approach.

¶ 4 On remand, the circuit court held a two-day trial, after which it entered judgment in favor of Karla. The court found that Jacob and Karla had an oral contract allowing Karla to use the pre-embryos without Jacob's consent, and rejected Jacob's assertion that the medical informed consent document signed by the parties modified or contradicted their oral contract. Alternatively, the court ruled in favor of Karla under the balancing-of-interests test. Karla was awarded sole custody and control of the pre-embryos. Jacob now appeals from that judgment.

¶ 5 We affirm the circuit court's judgment. The evidence at trial supported the circuit court's finding that the parties formed an oral contract on March 24, wherein they agreed to create pre-embryos that Karla could use to have a biological child. We also agree that the parties did not modify this contract when they signed the medical informed consent document on March 25. Finally, we cannot say that the court erred in finding that Karla's interests prevail over Jacob's interests in this dispute, based on evidence in the record that the pre-embryos represent Karla's last and only opportunity to have a biological child with her own eggs.

¶ 6 BACKGROUND

¶ 7 Jacob and Karla first met in 2001. Jacob is a firefighter, paramedic, and registered nurse. Karla is a physician who practices emergency medicine. The two began dating in November 2009, around the time that Jacob and his prior girlfriend, Ashley, ended their two-year relationship. Neither Jacob nor Karla expected their relationship to result in marriage. Karla testified that their relationship had no long-term prospects; Jacob agreed that he doubted their relationship when they were together, noting that they had problems and would fight.

¶ 8 In mid-March of 2010, Karla was diagnosed with non-Hodgkins lymphoma. Her oncologist recommended that she undergo chemotherapy, but told Karla that she would “most likely” lose her fertility as a result of the treatment. Karla was “devastated” and considered this news to be “just as bad as learning that [she] had cancer.” She “thought about how much [she] wanted to be a mother” and “immediately thought about [her] father,” who died when she was five years old, and “about how [she] wanted to have a grandchild * * * with part of him.” When Karla told Jacob how important it was for her to have children, Jacob “was very supportive.”

¶ 9 Karla subsequently met with a fertility specialist “at [her] hospital,” who confirmed the oncologist's belief that she would likely lose her fertility. The specialist recommended that Karla consult with Dr. Ralph Kazer, a fertility specialist with the Northwestern Medical Faculty Foundation (Northwestern). Karla testified that, by this time, her tumor was causing her “a lot of pain.” Her oncologist insisted that she start chemotherapy immediately. However, Karla postponed her chemotherapy treatment to explore IVF because of “how much [she] wanted to be a mother and have a biological child.”

¶ 10 Karla met with Dr. Kazer on March 24, 2010. During this meeting, Dr. Kazer told Karla that she would likely lose her fertility during chemotherapy. Dr. Kazer then discussed options for having a biological

34 N.E.3d 1138

child in the future, including freezing her eggs or creating embryos to be frozen. He also informed Karla about the option of using an anonymous sperm donor and even provided her with a list of sperm banks. Karla testified that she was “nervous” about using an anonymous sperm donor.

¶ 11 After their meeting, Karla called Jacob and told him about her options. Jacob was at work and took his cell phone into the bathroom to talk. Karla told Jacob that the plan was to retrieve a large number of eggs, fertilize a portion, and then freeze the resulting pre-embryos while she underwent her chemotherapy treatment. Karla asked if he would “be willing to provide sperm to make pre-embryos with her.” He responded “yes,” telling Karla that he wanted to help her have a child.

¶ 12 The next day, on March 25, 2010, Jacob and Karla met with the staff at Northwestern, including Dr. Kazer, nurses, a financial counselor, and a psychologist, Dr. Susan Klock. During this appointment, Jacob deposited sperm to be frozen and used for the IVF procedure.

¶ 13 At their March 25 meeting with Dr. Kazer, Jacob and Karla signed the Northwestern “Informed Consent for Assisted Reproduction” (the Informed Consent). The 21–page Informed Consent contains seven sections, the majority of which explain the procedures and risks for IVF treatments to the mother and to the potential offspring. A section on page seven requires the parties to designate the number of eggs they wanted fertilized; in this section is a handwritten reference indicating the parties' initial plan to “split” the retrieved eggs so that half would be fertilized and the other half would be frozen. This directive, however, was not initialed by the parties.

¶ 14 The Informed Consent provides that “[p]atients/couples who have frozen embryos must remain in contact with NMFF on at least an annual basis in order to inform NMFF of their wishes as well as to pay fees associated with the storage of their embryos.”

¶ 15 Pages 11 and 12 of the Informed Consent then explain Northwestern's legal rights and obligations as follows:

“Because of the possibility of you and/or your partner's separation, divorce, death or mental incapacitation, it is important, if you choose to cryopreserve your embryos, for you to decide what should be done with any of your cryopreserved embryos that remain in the laboratory in such an eventuality. Since this is a rapidly evolving field, both medically and legally, the clinic cannot guarantee what the available or acceptable avenues for disposition will be at any future date. At the present time, the options are:

1) discarding the cryopreserved embryos

2) donating the cryopreserved embryos for approved research studies.

3) donating the cryopreserved embryos to another couple in order to attempt pregnancy.

Embryos are understood to be your property, with rights of survivorship. No use can be made of these embryos without the consent of both partners (if applicable).

a) In the event of divorce or dissolution of the marriage or partnership, NMFF will abide by the terms of the court decree or settlement agreement regarding the ownership and/or other rights to the embryos.

b) In the event of the death or legal incapacitation

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