Karla Dunston had been dating Jacob Szafranski for about five months when she received troubling news: she had non-Hodgkin’s lymphoma. An oncologist told her that the chemotherapy was likely to make her infertile, so Dunston, an emergency-medicine doctor, decided to delay it for enough time to take precautions. She called Szafranski, a nurse, paramedic, and firefighter, and asked if he would provide sperm so that she could freeze embryos for possible future use. He agreed, and the next day they went to a lab at Northwestern University to sign an informed-consent form and begin the procedure. About ten days later, Dunston’s eggs were harvested. But she didn’t produce very many: only eight. While the original plan had been to fertilize half and freeze the other half, the doctor argued that this would be risky. “Fertilize all eight,” Szafranski said. They did, and Dunston began chemotherapy the following day.
The fate of these frozen pre-embryos (the technical term for an embryo that has not yet been implanted) is currently the subject of a lawsuit that has been going on in Chicago for almost four years. In May, 2010, while Dunston was undergoing her second round of chemotherapy, she and Szafranski broke up. On August 22, 2011, after more than a year of e-mail correspondence about what would happen to the pre-embryos, Szafranski filed a complaint enjoining her against using them. The case is currently under appeal, with a decision imminent. It could go to the Illinois Supreme Court.
The case focusses on what kind of contract existed between Dunston and Szafranski, and to what extent that matters. Was the boilerplate form that they signed with Northwestern a contract? Or did they have an oral contract, represented by the seven-minute phone conversation that they had about their decision, with Dunston calling from home and Szafranski speaking on a cell phone in his workplace bathroom? What about a draft contract written up by a lawyer about the embryo disposition, which was never signed?
The technology to freeze pre-embryos has been around since the early nineteen-eighties. (In 1984, the first baby from a frozen embryo was born.) By current estimates, there are more than six hundred thousand—some say more than a million—frozen pre-embryos in the United States, and one of the many unanticipated questions stirred by developments in reproductive technology is what to do with them. What happens when couples split up? The frozen pre-embryos aren’t children, but they aren’t exactly property, either. Who decides what happens to them?
Initially, Szafranski and Dunston had none of these concerns. Both seemed certain that the decision they were making was the right one. Neither seemed to think that the romantic relationship would last. They had been friends for almost ten years, and regarded each other with mutual esteem. When the doctor mentioned the possibility of anonymous sperm donors to Dunston and gave her a list of banks she might try, she stuck with Szafranski. “I thought that he was a wonderful person that I had a lot of respect for, that I thought was honest and good, and I admired him as a person,” she testified. Elsewhere, she refers to him as “an angel.” Even in the weeks after their breakup, both seemed sure of their choice. A month later, Szafranski wrote in an e-mail to Dunston, “When you asked me if I would be the donor for your emergent egg harvesting I still have no reservations in my answer. If you desired to have the possibility of having a child in the future and I could be of help to you, I’d do it all over again.” He stated that he personally did not want the embryos to be implanted, but that what happened to the embryos was Dunston’s choice.
The circumstances changed, however, a few months after that. Szafranski resumed his relationship with a woman he had dated before Dunston. But the relationship ended again—this time, he said, because of the pre-embryos. They were, he testified, the “very thing that drove us apart.” In his testimony for the Circuit Court, he returned several times to the idea that he didn’t want to become a father against his will. At another point, he discussed how this arrangement might be viewed. He was worried that others might think less of him for having a child whose life he might not be involved in. (Dunston intends to be financially and legally responsible for any child born from the pre-embryos.) The people around him, he said, “don't know necessarily how they’re going to feel if something like this were to go through, for me to have children in the world and not be involved with them, and I have no idea what kind of future I have.” Meanwhile, Dunston became pregnant with a donated embryo, according to several newspapers, but she continued to desire a genetically related child.
Szafranski v. Dunston is the first case about frozen pre-embryos in Illinois, but such disputes have been occurring for decades, and the laws governing them vary by state. Some states, like Tennessee, take a balance-of-interests approach. A 1992 decision argued that, in the absence of a prior agreement about the disposition of pre-embryos, the party wishing to avoid procreation should prevail if the other party had a reasonable alternative option for becoming a parent. The court ordered that the pre-embryos of a divorcing couple should be discarded, finding in favor of the former husband, who did not wish to become a father. After the Tennessee case, there was a move across the country to try to anticipate these disputes, according to Alta Charo, a professor at the University of Wisconsin law school. Many states, such as New York and Texas, began to opt for contractual enforcement. In a 1998 dispute between a divorcing couple, the Court of Appeals in Albany followed the contract that they had signed with the clinic. In another approach, Iowa requires mutual consent before embryos can be disposed of or used. Massachusetts will not enforce contracts in such cases. After a 2000 divorce dispute, the Massachusetts Supreme Court ruled, “As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement.”
Illinois has, so far, used a hybrid approach. In the most recent decision in the Szafranski-Dunston case, in May, 2014, Judge Sophia Hall argued that the decision should be based on a contract, but, if there is no contract, a balance of interests should be used. Hall argued that the phone conversation between Dunston and Szafranski was an oral contract. She further noted that the case was likely to be appealed, and that, were it to be considered on a balance of interests, Dunston’s should prevail because she could not have a genetically related child by any other means. “The Court … finds that Karla’s desire to have a biological child in the face of the impossibility of having one without using the embryos, outweighs Jacob’s privacy concerns,” Hall wrote.
In court transcripts, it is striking how often the issue under discussion shifts or changes character. Both lawyers and parties switch terms. Sara Fletcher, a lawyer for Dunston, repeatedly asks Szafranski about his “sperm donation.” But the lawyer for Szafranski objects to the word “donation,” and refers to that same action as “providing” sperm. One of the central points of the case—that Dunston should be able to have a “biological” child, as it is referred to in the court documents—also leads to a dispute over definitions. As Charo points out, Dunston’s existing child could be considered a biological one. Dunston doesn’t need to be genetically related to a child to have a “biological” connection. “If she gestated and gave birth to a child, I will say that she is the biological mother of that child. Genetics isn’t the only connection women have to their kids. Gestation is as well.”
Some of these linguistic issues, of course, are mere technicalities. But reading over the case, one gets the sense that there’s a fundamental lack of language to describe what’s at stake. There may be an emerging field of law and legal precedent, but the terms at hand don’t adequately capture the nature of the dispute. One statement relating to Szafranski v. Dunston refers to “custody” of the pre-embryos, as if deciding the fate of a child; later on, that same decision is referred to as “disposition”—the kind of thing one does to a piece of property. In the middle of her testimony, Dunston began to describe the frozen fertilized eggs as if she were already pregnant with them. “I named them. I thought about having triplets,” she said.
Both Dunston and Szafranksi worked in medicine. Scientifically and legally, a frozen embryo is not the same as a living child. Nevertheless, even if the embryos under discussion are understood not yet to be persons, there seems to be no clear way to describe the kind of decision the prospective parents are trying to make. Such cases will become more common—last week, in the first instance of a celebrity embryo battle, the actress Sofia Vergara was allegedly sued by her ex-husband over their frozen pre-embryos. Both the law and language will have to catch up to untangle the choices they involve.
