Medically Assisted Reproduction: Pre-Embryos, Contracts and Custody

Medically Assisted Reproduction: Pre-Embryos, Contracts and Custody

Victoria Ferrara


Just as with divorce cases and child custody, controversy surrounds the area of assisted reproduction technology.  Who actually owns pre-embryos and what happens when the donating couple comes to a disagreement regarding the use of the embryos. In an ongoing case in Chicago, Karla Dunston was diagnosed with non-Hodgkin's lymphoma and was told that she could become infertile after undergoing chemotherapy. Before starting the treatment, Dunston asked her boyfriend of five months to donate sperm to create pre-embryos for her to save in the event that she wanted to get pregnant in the future. The boyfriend, Jacob Szafranski agreed, and the couple proceeded to create eight pre-embryos in which they fertilized all eight of them.

During Dunston's second round of chemotherapy, she and Szafranski broke up. A year after the break up, Szafranski "filed a complaint enjoining her against using them (pre-embryos)." See Madeleine Schwartz' article in The New Yorker. The case, which is on appeal, could potentially go to the Supreme Court. Its initial question is what kind of contract or agreement took place before harvesting the pre-embryos. The article points that that a draft contract was not written up by a lawyer. The article discusses the idea that pre-embryos aren't necessarily children yet, but at the same time they are not property, so, "who decides what happens to them?"

Szafranski, the sperm donor in this case, wanted to help his girlfriend out during a very hard and discouraging time in her life. He made the decision because after going through chemotherapy, Dunston would not be able to produce eggs. Szafranski had a change of heart about this decision when he and a new girlfriend broke up, blaming the pre-embryos for driving them apart. He also insisted that he did not want to become a father against his will, arguing that "he was worried others might think less of him for having a child whose life he might not be involved in" (Schwartz). Szafranski's change of heart exemplifies the dilemma of who owns custody or control over the potential lives once an embryo is formed.  

States vary as to how they approach the matter of custody of pre-embryos. In a 1992 decision, Tennessee took a balance of interests approach. In this ruling it was stated that in the absence of a prior agreement regarding the embryos, the party that wishes to avoid procreation will prevail if the other party has a reasonable alternative to becoming a parent. In the ensuing decade, states such as New York and Texas opted for contractual enforcement, while Iowa for example, required mutual consent before embryos are disposed of or used. In 2000 the Massachusetts Supreme Court ruled, "as a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement" (Schwartz).

In Dunston v. Szafranski, Illinois has taken on a hybrid approach that focuses on whether a contract is enforceable and the balance of interests between parties. Dunston's lawyer argued on two terms. The first was that the email conversations were an oral contract and that Szafranski cannot go back on that word. The second was in the light of balance of interests, Dunston's "should prevail" because she is unable to have a genetically related child "by any other means". The court ruled that because Dunston's desire to have a biological child was dependent on these embryos, it outweighed Szafranski's privacy concerns.

Reasons for disputes about pre-embryos can easily occur in situations such as Dunston's and Szafranski's. They are a prime example of a couple who at the time were doing the right thing but didn't look far enough down the road to realize what the potential complications could be. If interested in medically assisted reproduction, it is important to think long and hard about who the people involved will be and what kind of agreement is put in place. 



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