Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 11 CH 29654 Honorable Sophia H. Hall Judge Presiding.
Presiding Justice Harris and Justice Simon concurred in the judgment and opinion.
¶ 1 This appeal is a case of first impression in Illinois involving a dispute between plaintiff- appellant, Jacob Szafranski, and defendant-appellee, Karla Dunston (collectively, the couple), over the right to use pre-embryos created with appellant's sperm and appellee's ova. The circuit court ultimately granted appellee's motion for summary judgment and denied appellant's cross-motion for summary judgment, granting appellee full custody and control over the pre-embryos. On appeal, appellant contends that the circuit court erroneously denied his motion for summary judgment where his rights of privacy and liberty under the United States and Illinois Constitutions require his consent to any use of the pre-embryos at the time of the proposed use; and that the circuit court erroneously granted appellee's motion for summary judgment where there are questions of fact regarding whether he agreed appellee could use the pre-embryos.
¶ 2 I. BACKGROUND
¶ 3 The record shows, in relevant part, that in March 2010, appellee was diagnosed with non- Hodgkin's lymphoma and informed that her chemotherapy treatments would likely cause the loss of her fertility. She asked appellant, with whom she was in a relationship, if he would donate his sperm for the purpose of creating pre-embryos with her eggs, and he agreed to do so.
¶ 4 On March 25, 2010, the couple met with physicians and staff at Northwestern regarding the creation of the pre-embryos, and appellant deposited sperm to be frozen and used as a backup on the date appellee's eggs were retrieved. The couple also signed a document entitled "INFORMED CONSENT FOR ASSISTED REPRODUCTION" (the informed consent). Besides outlining the risks involved with in vitro fertilization, the informed consent states that "[n]o use can be made of these embryos without the consent of both partners (if applicable). In the event of divorce or dissolution of the marriage or partnership, NMFF [Northwestern Medical Faculty Foundation's Division of Reproductive Endocrinology and Infertility] will abide by the terms of the court decree or settlement agreement regarding the ownership and/or other rights to the embryos." The informed consent contains the following disclaimer as well:
"The law regarding [in vitro fertilization], embryo cryopreservation, subsequent embryo thaw and use, and parent-child status of any resulting child(ren) is, or may be, unsettled in the state in which either the patient, spouse, partner, or any current or future donor lives, or in Illinois, the state in which the NMFF Program is located. NMFF does not provide legal advice, and you should not rely on NMFF to give you any legal advice. You should consider consulting with a lawyer who is experienced in the areas of reproductive law and embryo cryopreservation as well as the disposition of embryos, including any questions or concerns about the present or future status of your embryos, your individual or joint access to them, your individual or joint parental status as to any resulting child, or about any other aspect of this consent and agreement."
¶ 5 On the day of their meeting at Northwestern, the couple also met with an attorney, Nidhi Desai, to discuss the legal implications of creating pre-embryos, and Desai presented them with two possible arrangements: a co-parent agreement or a sperm donor agreement. On March 29, 2010, appellee sent Desai an e-mail opting for the former, and Desai sent the couple a draft of a co-parent agreement (the co-parent agreement). The stated primary purpose of the co-parent agreement was "to memorialize the Parties' intent and agreement that they shall both be established as the legal co-parents of the Child." The co-parent agreement provided, inter alia, that the couple would attempt to participate in at least one in vitro fertilization and pre-embryo transfer cycle in which appellant would "provide sperm samples to create the pre-embryos, " and that appellant "agrees to undertake all legal, custodial, and other obligations to the Child regardless of any change of circumstance between the Parties." (Emphasis in original.) The co-parent agreement also provided that "[a]ny eggs retrieved and cryopreserved as a result of this [in vitro fertilization] retrieval shall be under Karla's sole control" and that "[s]hould the Intended Parents separate, Karla will control the disposition of the pre-embryos." Further, the co-parent agreement provided: "Jacob acknowledges and agrees that Karla is likely to be unable to create new healthy embryos subsequent to the chemotherapy regiment she will undergo, and Jacob specifically agrees that Karla should have the opportunity to use such embryos to have a child."
¶ 6 The co-parent agreement was never signed by the couple. Nevertheless, on April 6, 2010, appellant deposited sperm and eight eggs were retrieved from appellee. The couple agreed to fertilize all eight based on the doctor's advice that doing so would be appellee's best chance of having a child, and three of the pre-embryos ultimately survived to viability. The next day, appellee began her chemotherapy treatment.
¶ 7 In May 2010, appellant sent appellee a text message ending their relationship. On August 22, 2011, he filed a pro se complaint in the circuit court of Cook County seeking to permanently enjoin appellee from using the pre-embryos so as to "preserv[e] [his] right to not forcibly father a child against his will." On September 1, 2011, appellee responded with a three-count verified counterclaim: in Count I, she sought a declaratory judgment granting her sole custody and control over the pre-embryos and the right to use them to bear children; in Count II, she alleged breach of contract and requested specific performance of the parties' agreement; and in Count III, she sought relief under a theory of promissory estoppel.
¶ 8 At the close of discovery, the parties filed cross-motions for summary judgment. Appellee asserted, inter alia, that appellant was bound by the terms of the co-parent agreement because, even though he did not sign it, he fully performed his one "critical" obligation under the agreement and provided sperm samples to create the embryos. She also asserted that appellant induced her to rely on his representation that he would help her have her own children, and that she was harmed by that reliance because now she cannot go back and use a random sperm donor to fertilize her eggs. Additionally, appellee asserted that if the court found that appellant was not bound by the co-parent agreement or estopped from preventing use of the embryos, the court should follow Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012), and balance the interests of the parties, finding that her interest in having her own biological children outweighs appellant's interest in not fathering a child. Appellee attached to her motion a letter from Dr. Eve Feinberg stating that appellee has ovarian failure as a result of her chemotherapy treatment which has "rendered [her] unable to conceive a child with the use of her own oocytes."
¶ 9 Appellant claimed that he was entitled to summary judgment based on the right not to be a parent under the United States and Illinois Constitutions. In support of his federal constitutional claim, he cited abortion case law and asserted that "the right to an abortion is a semantic recasting of the constitutional right not to be a parent." He argued that unlike in the abortion context, though, a man and woman are in equal positions when it comes to cryopreserved embryos, because they are not inside the woman's body. Therefore, he argued, "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 preembryos." As for the Illinois constitution, appellant adopted the same argument and noted that "the Illinois right to privacy is broader than the federal right." He further asserted that Reber did not apply and that In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003), was "[m]ore in line with the federal and Illinois constitutional right not to be a parent." Lastly, appellant maintained that appellee's motion for summary judgment should be denied because there was a question of fact regarding whether a contract existed.
¶ 10 On September 17, 2012, the circuit court granted appellee's motion for summary judgment and denied appellant's motion for summary judgment. The court noted that the case was one of first impression in Illinois and that appellee's "legal theories include[d] contract, promissory estoppel, and then even beyond that the balancing of the interests of the parties, which is discussed in Reber." The court stated:
"The Court is not persuaded by the legal arguments made by [appellant] in his brief as applied to all of the facts in this case. The Court is persuaded by the reasoning in the cases that
[appellee] has cited in support of each of her legal theories for her opportunity to use the embryos to become a biological parent.
And accordingly, the Court adopts the legal reasoning that's contained in the cases that are relied on by [appellee] in her brief."
The following day, the court entered a written order of its ruling, and ordered that appellee "shall have full custody and control over the disputed preembryos that are presently in the custody of Northwestern Hospital and may use them to attempt to have children." Pursuant to Illinois Supreme Court Rule 305 (eff. July 1, 2004), the court stayed enforcement of the order pending a disposition on appeal.
¶ 11 II. ANALYSIS
¶ 12 Appellant now contends that the circuit court erroneously denied his motion for summary judgment, claiming that his rights of privacy and liberty under the United States and Illinois Constitutions require that he consent to any use of the pre-embryos. He also contends that the court erroneously granted appellee's motion for summary judgment where questions of fact exist regarding whether he agreed appellee could use the pre-embryos.
¶ 13 A. Standard of Review
¶ 14 "Summary judgment is appropriate when 'the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Tunca v. Painter, 2012 IL App (1st) 110930, ¶ 13 (quoting 735 ILCS 5/2-1005(c) (West 2010)). We review de novo the circuit court's ruling on a motion for summary judgment. Tunca, 2012 IL App (1st) 110930, ¶ 13.
¶ 15 B. The Law of Cryopreserved Pre-Embryos
¶ 16 This case presents an issue of first impression in Illinois; namely, who controls the disposition of cryopreserved pre-embryos created with one party's sperm and another party's ova. Courts in other jurisdictions have addressed this issue under various circumstances and generally conducted three types of analyses in resolving this question: (1) a contractual approach; (2) a contemporaneous mutual consent approach; and/or (3) a balancing approach. Reber, 42 A.3d at 1134. Each of these approaches is discussed, in turn, below.
¶ 17 1. The Contractual Approach
¶ 18 The first approach applied by courts in these circumstances is the contractual approach. Under this approach, courts will 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. Witten, 672 N.W.2d at 776. The benefits of a contractual approach are that it encourages parties to enter into agreements that will avoid future costly litigation, and that it removes state and court involvement in private family decisions. As noted by the Court of Appeals of New York:
"[P]arties should be encouraged in advance, before embarking on [in vitro fertilization] and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of [in vitro fertilization] programs [citations].
To the extent possible, it should be the progenitors – not the State and not the courts – who by their prior directive make this deeply personal life choice." Kass ...