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Szafranski v. Dunston

Court of Appeals of Illinois, First District, Second Division

June 12, 2015

JACOB SZAFRANSKI, Plaintiff-Appellant,
KARLA DUNSTON, Defendant-Appellee.

Appeal from the Circuit Court of Cook County, No. 11-CH-29654; the Hon. Sophia H. Hall, Judge, presiding.

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.

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 (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 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.


¶ 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-Hodgkin's 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 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 of one partner, the other partner will retain decision-making authority regarding the embryos.
c) In the event both partners die or are legally incapacitated, or if a surviving partner dies or is legally incapacitated while the embryos are still stored at NMFF, the embryos shall become the sole and exclusive property of NMFF. In this event, I/we elect to: (please select and initial your choice). Note: both the patient and the partner must agree on disposition; as with other decisions relating to IVF, you are encouraged to discuss this issue."

Below this paragraph, Karla and Jacob initialed the space next to the option to "[d]onate the embryos to another couple."

¶ 16 Included on page 17 of the Informed Consent is an additional legal disclaimer:

"The law regarding IVF, 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."

¶ 17 The last page of the Informed Consent contains the signatures of Jacob, Karla, and Dr. Kazer and the date of March 25, 2010. Above their signatures is the following provision:

"After your questions have been answered to your satisfaction, please sign your names below to indicate that you have had adequate time to review the information contained in this consent form and that you are ready to begin your upcoming IVF treatment cycle."

¶ 18 Later that day, following their appointment at Northwestern, Jacob and Karla met with Nidhi Desai, an attorney, to discuss the IVF procedure and their options for the pre-embryos. Desai presented the couple with two possible arrangements: a co-parenting agreement or a sperm donor agreement. Desai explained that, under a co-parenting agreement, Jacob would be involved in any resulting child's life as a co-parent, including sharing financial responsibility. She also explained that, under a sperm donor agreement, Jacob would have no obligations and would be waiving his parental rights. Desai informed the parties that if they wanted to use a sperm donor agreement, each party would require independent legal representation and they would have to hire an additional attorney for this purpose. Desai did not present Jacob and Karla with any draft agreements during their initial consult; rather, they were supposed to call her afterwards to tell her which arrangement they had chosen.

¶ 19 On March 29, 2010, Desai received an e-mail from Karla stating that the couple had opted to proceed under a co-parenting agreement. Desai prepared and e-mailed Karla a document entitled "Co-Parent Agreement" later the same day. This proposed agreement was never signed.

¶ 20 On April 6, 2010, the parties went together to Northwestern, where Karla underwent the egg retrieval procedure and Jacob made his second deposit of sperm. Following the procedure, Dr. Kazer informed them that he had retrieved fewer eggs than originally anticipated and advised them that they would have a better chance of having a biological child if they fertilized all eight. Karla asked Jacob, "[W]hat should we do?" Jacob indicated to her that they should fertilize all of the eggs with his sperm. Ultimately, only three eggs were successfully fertilized.

¶ 21 The next day, Karla began her chemotherapy treatment. Jacob attended her first appointment and, initially, was "a hundred percent supportive." Subsequently, however, he stopped returning her phone calls and text messages. In May, after Karla's second chemotherapy cycle, Jacob ended their relationship in a text message. Karla responded with an inquiry about the pre-embryos, but received no response.

¶ 22 On June 14, 2010, Jacob sent Karla an e-mail for the first time after ending their relationship. In his e-mail, he stated: "I still have many questions to ask myself along with all the things I'd like to ask you. So with that being said I feel I should tell you what has been going on in my mind and life over these past few months in attempt to bring closure to what has happened between us so far." He acknowledged that there were differences that he could not reconcile and even though Karla was unaware of these issues, he knew they ultimately "could not be together." He also admitted in the e-mail that he had concealed from her his true feelings and reservations about their relationship while simultaneously seeking a way to end it that would leave her "in a position to move on intact despite the loss of [their] relationship." In a paragraph describing his concerns about their separation and their pre-embryos, he wrote:

"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. But now that we've already gone through with everything I wonder if you in asking me were doing so out of a longing to have 'my' child instead. The two are very different things, things neither you nor I were clear upon, because we never discussed our thoughts and feelings when given such choices. Karla I rather desired you to have a child of your own in the future with the return of your health, not for us to have a child when that time comes. I know now that there isn't a possibility of a future for us together and that our relationship has faltered. I wonder if you would've rather gone with a random donor in knowing this, a question that my indecision has robbed you of, even in spite of my assumed generosity and caring actions. I'm sorry for this and I hope you can forgive me even after everything I've put you through. Now in the after math [sic] of that decision I'm faced with even more compounding issues all stemming from my fear of the truth. Karla do you still wish to keep the embryo's [sic] after all of this? Do you desire the potential to have 'a' child in the future or 'my' child, because if your choice is the ladder [sic] I won't be there? I had no intention of being there. I ask myself, would you have asked someone instead of me if I had said no, or would you have even gone through with it at all? It's far too late to be saying this, but you and I both know we never had the needed time to make such a decision and rather hastily went about things due to your health."

¶ 23 Jacob also expressed concern about the reaction he had received from his friends and family when discussing the fact that he had participated in the IVF process with Karla:

"I never imagined that what I'm saying to you right now would be so expansive and reaching in my life Karla. My time with you has worked its way into every part of my being with everything and everyone I know. Since I stopped returning your text's [sic] and calls I looked for council [sic] from just about everyone I could, and have been met with mixed feelings to say the least. Some of my friends and family feel I've made a grave mistake and did something that is unnatural and that I should not go through with. Others feel the same as I do and believe I did what was best given the circumstances and acted with the utmost of intentions. However, I never imaged [sic] that my choice would be one that would forever push me away from those people I've been so close to in my life. *** I know that I must make a choice in this and choose to leave it up to you ultimately to decide Karla."

¶ 24 Finally, he acknowledged a fear of being rebuked or rejected for having helped Karla:

"I just am afraid that this will be something that haunts me for the rest of my life and that once I do find someone who I'm ready to love and have a family with they will reject me on the basis that I could potentially have a child of my own in the world with another women [sic], that I know nothing about and neither of which have I ever loved. The thought of a child being a mutually desired choice in the shared life and relationship of two loving adults is something very fundamental and non-negotiable to some people. I just wonder if my future happiness in life will be tethered to the women [sic] I cared for years ago and the child I never knew."

¶ 25 On September 6, 2010, Jacob sent Karla another e-mail, announcing that he could not let her use the pre-embryos and that he wanted them to be donated to science or research. In her e-mail back to Jacob that same day, Karla responded: "Those embryos mean everything to me and I will fight this to the bitter end." On September 10, 2010, Jacob sent Karla an e-mail, telling her that "if [she] could put together all the documents that [he] would need to sign over the embryos [he'll] do it." He also asked her to "mail all correspondence" to a different address and to refrain from replying to his e-mail message because "other people routinely access [his] email and will ultimately make this a harder decision for [him] to make."

¶ 26 Karla contacted Desai about drafting a sperm donor agreement, and Desai told her that Jacob would need to sign a waiver and obtain separate legal representation. Desai recommended an attorney for Jacob. The attorney later informed Desai that she and Jacob did not connect for a time, but when they did, Jacob said he "did not want to move forward with the arrangement."

¶ 27 Jacob subsequently hired an attorney, Kurt Mueller, who sent a document entitled "Sperm Donation and Confidentiality Agreement" to Karla's attorney on April 29, 2011. The proposed agreement granted Karla full custody of the pre-embryos and required, among other things, that Jacob's identity as the sperm donor remain confidential. Jacob, however, later discharged Mueller and sent his own "proposed anonymous embryo donation and confidentiality agreement" which also included a provision granting Karla full custody of the pre-embryos. Karla testified that she would have signed Jacob's proposed agreement, but Northwestern indicated that it would not abide by its terms.

¶ 28 On August 22, 2011, Jacob filed the underlying lawsuit against Karla.[1]

¶ 29 The Trial

¶ 30 The trial evidence included the in-court testimony of Jacob and Karla and the deposition testimony of Dr. Kazer, Nidhi Desai, and Ashley Harris, Jacob's former girlfriend. Among the documents admitted into evidence were the following: the Informed Consent dated March 25, 2010; the draft Co-Parent Agreement prepared by Desai on March 29, 2010; and the e-mails between Jacob and Karla, along with the attachments to the e-mails.

¶ 31 Jacob's Testimony

¶ 32 Jacob testified that he responded "yes" when Karla asked him on March 24 if he would "would be willing to provide sperm to make pre[-embryos] with her." He admitted telling Karla that he wanted to help her have a child, and acknowledged that the purpose of providing his sperm was to help her have a biological child. He agreed that they never discussed any limitations on her future use of the pre-embryos. In fact, the thought of placing limitations on Karla's use of the pre-embryos "never crossed [his] mind."

¶ 33 As for the Informed Consent, Jacob acknowledged that the purpose of the document was "[p]artly" to protect Northwestern from committing a crime in the event it touched him, conducted tests on him, or disclosed his medical information. He nonetheless understood the Informed Consent as requiring both his and Karla's approval prior to any use of the pre-embryos. He admitted that he never communicated this understanding to Karla.

¶ 34 Jacob testified that, during their March 25 meeting, Dr. Kazer told the couple that any use of the pre-embryos would require the consent of both individuals because they were not married; however, he acknowledged that Dr. Kazer never asked the parties to agree what should happen to the pre-embryos in the event of their separation. Instead, Dr. Kazer encouraged them to go see an attorney to resolve that issue and indicated that Northwestern would abide by an agreement, prepared by an attorney, regarding custody of the pre-embryos.

ΒΆ 35 Jacob acknowledged that despite the couple's initial plan to fertilize some of Karla's eggs and to cryopreserve the rest of them, he agreed that Karla should fertilize all eight eggs after Dr. Kazer indicated that there would be a better chance of creating viable pre-embryos if all the eggs were fertilized. Jacob knew that these were likely the last ...

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