Illinois Court Awards Custody of Frozen Fertilized Eggs to Woman Over Ex-Boyfriend’s Objection

The Illinois Appellate Court has awarded “custody” of three embryos, frozen five years ago, to a 43-year-old Chicago woman, over the objection of her former boyfriend, who sued to prevent her from using the fertilized eggs.

In an opinion by Illinois Appellate Court Justice Laura Liu issued on June 12, 2015, the Illinois Appellate Court ruled that defendant Karla Dunston must be awarded the sole custody and use of pre-embryos she froze with her former boyfriend, plaintiff Jacob Szafranski, prior to Dunston receiving chemotherapy treatment for cancer. Months after Szafranski donated his sperm to fertilize Dunston’s eggs, the couple split. The Appellate court ruled that the hardship that Dunston would face in not using the eggs – she is now unable to produce more eggs to have her own biological children – outweighs the hardship that Szafranski would face if Dunston uses the eggs. Szafranski claims that Dunston’s attempted use of the eggs has already caused one of his romantic relationships to be terminated, and that he fears future romantic prospects would be compromised. The court held that Szafranski’s damages were merely “speculative,” while Dunston had no other option other than the fertilized eggs in dispute to have a biological child.

In divorce and paternity cases, circuit courts frequently award custody of children to one or both of their parents. In this landmark case, the court has been asked to make a “custody” decision as to children not yet born.

Ultimately, the court upheld as enforceable the oral agreement between Dunston and Szafranski that Dunston can use eggs fertilized by Szafranski’s sperm, that the breakup of the parties was forseeable at the time the oral contract was made, and that Szafranski did not reserve a right to terminate his consent to Dunston’s use of the eggs. Therefore, the Court held that the “informed consent” Szafranski signed at the time he donated sperm could not be rescinded. Because there was no contractual provision for the disposition of the eggs in the event of the parties’ breakup, the Court would not provide one after the fact. The Appeals Court thus affirmed the ruling of the Cook County Circuit Court.

Multiple news outlets, including the International Business Times, have reported that Szafranski plans to appeal the Appellate Court’s decision.

If you have further questions about custody rights, you may contact attorney Kristina B. Regal, at kregal@lavellelaw.com or (847) 705-7555.