The Pre-Embryo Quandary

How To Eliminate Disputes that Commonly Arise After Couples Commence IVF

In June 2015, the Illinois Appellate Court ruled that Karla Dunston could use the pre-embryos created by her former boyfriend, Jacob Szafranski, against his objection. In 2010, the parties entered into an agreement to undergo in vitro fertilization (“IVF”) together. This was necessary after Karla was diagnosed with lymphoma, and was expected to lose fertility after completing chemotherapy. After the preembryos were created, their relationship ended and Jacob no longer wanted her to use the pre-embryos. The court held that Karla could use the pre-embryos to have a child because the parties entered into an oral contract when they agreed to create pre-embryos that Karla could use to have a biological child. The court also noted that even if the parties did not have a binding contract, Karla would still prevail because her interests outweighed Jacob’s since the pre-embryos were her last and only opportunity to have a biological child.

Pre-embryo disputes of this nature have been steadily increasing as more couples have resorted to IVF to have children. Only ten states have court rulings on how to handle pre-embryo disputes after they arise. The rulings can be organized into three categories with courts either (1) enforcing prior contracts, (2) ignoring prior agreements and instead balancing the parties’ interests, or (3) ruling that the parties themselves must reach an agreement or pay for the pre-embryos to be frozen indefinitely. Thus, couples undergoing IVF in the other forty states experience uncertainty as to the fate of their pre-embryos in the event of a future disagreement. This Article recommends that Congress pass legislation requiring all couples initiating IVF to enter into a contract that would remain binding if a dispute were to arise later. This solution would allow parties to proactively choose what will happen to their pre-embryos and eliminate the need for courts to intervene in these familial disputes.

The full text of this Symposium is available to download as a PDF.