- Karla Dunston was diagnosed with non-Hodgkin lymphoma in March 2010 and asked then-boyfriend to give his sperm for frozen embryos
- He agreed and they create three embryos – but two months later he broke up with her and said he no longer wanted children
- They had signed agreement saying both needed to consent to use embryos
- But her cancer treatment left her infertile and she argued she has the right to biological children and ‘it is too late for him to back out of his promises’
- A Chicago judge on Friday awarded the eggs to Dunston
A judge is siding with a Chicago woman seeking to use frozen embryos to have a child over the objection of her former boyfriend.
Karla Dunston was diagnosed with lymphoma four years ago. Knowing chemotherapy would make her infertile, she had embryos frozen before treatment.
Her then-boyfriend, Jacob Szafranski, provided the sperm. They broke up a year later and Szafranski changed his mind, leading to a lengthy court battle.
In court: Karla Dunston and Jacob Szafranski created frozen embryos with their egg and sperm after she was diagnosed with cancer. But they later broke up and he said he no longer wants her to use the embryos
A Cook County judge on Friday awarded custody of the embryos to Dunston.
The judge said Dunston’s “desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs” Szafranski’s privacy concerns.
Szafranski says he will appeal.
Dunston, 42, maintains that she has the right to have her biological children and should control the future of the embryos, while her ex-boyfriend Jacob Szafranski, 32, argues that he never agreed to give up his say in the matter.
Dunston has since gone on to carry and give birth to a son – using a donor egg and donor sperm, Szafranski’s attorney confirmed. But he added that would not affect the outcome of the case as the court distinguishes between a child that is biological and ‘essentially adopted’.
The couple, who met through their work in a Chicago hospital, had been dating for just five months when Dunston received her diagnosis.
After Szafranski agreed to provide his semen, he gave a sample at Northwestern Hospital’s fertility clinic, the Chicago Tribune reported.
‘It was a very emotional time and I was just trying to support Karla the best way I could,’ the firefighter and former nurse told the newspaper.
Dunston, in a court deposition, added: ‘I thought about my different options, of using a sperm donor or someone that I knew for many years and that was a wonderful person.
‘So I decided to go with someone that I thought was a wonderful person and I trusted.’
New life: She had a child through donors two years after they broke up but she is still fighting to use the embryos for another child. Lawyers said her baby would not affect the outcome of the case
A NEW CASE FOR ILLINOIS – BUT WHAT HAPPENED IN OTHER STATES?
Szafranski v. Dunston will set a new precedent in the state of Illinois, where lawmakers have never ruled in a similar case. But what decisions have been reached in other states, and what clues do they give to the outcome of the case?
In Pennsylvania last year, an appeals court gave frozen embryos to a woman who wanted to give birth even though her ex-husband wanted to embryos destroyed. As in this Illinois case, the ex-wife was believed to be infertile following treatment for cancer. The court ruled that her wish to be a mother outweighed the man’s desire not to parent children.
But in Tennessee, a court has previously decided that parenthood could not be forced on someone who was not willing. The Supreme Court in 1992 ruled that fatherhood was going to be a greater burden for an ex-husband than destroying the embryos would be for his ex-wife, and she was not granted the embryos.
Also similar to this case, a couple in New York who froze embryos signed an agreement saying they could only be used with consent from both parties. But the wife, who later became infertile, later requested sole custody of the embryos – which the husband opposed. The Court of Appeals ruled that the contract should stand and the embryos were donated to research.
At the time, the couple also signed a document that stated ‘no use can be made of these embryos without the consent of both partners’.
They met up with an attorney and a second agreement that gave Dunston sole control of the fertilized eggs was drawn up – but the couple never signed it.
Two months after the hospital visit, Szafranski broke up with Dunston via text message. He said he had initially been honored to help out his girlfriend, but later had reservations.
‘I have the right not to be a father,’ he said. ‘It’s something I take very seriously and feel very strongly about.’
But he later changed his mind and said that he would give Dunston control of the embryos if the child could never be traced back to him – but when he asked the hospital to destroy his records, they refused.
He eventually concluded that the child would be traced back to him and that he did not want children at all, at any point.
In June 2010, he wrote in an email that he worried he would find someone he was ready to have a family with – but that they would reject him based on the fact he had a child he did not know with a women he did not love.
But as had been predicted, Dunston was left infertile by her successful cancer treatment. Experts said that this infertility did not mean she was unable to carry the embryos and have a child.
She wrote her ex-boyfriend an email in September 2010, reading: ‘I had a chance to use a random sperm donor and you took that away from me by agreeing to help.
‘I trusted you and now you are trying to take away my chance of having a biological child… Those embryos mean everything to me, and I will fight this to the bitter end.’
Her right? Dunston said he agreed to have her children when he gave her his sperm for the embryo and cannot take away her right to have children. He argues he should not be forced to have them
After the fallout, a Cook County trial court awarded Dunston rights to the embryos, but Szafranski appealed and a higher court sent the case back, explaining that the case focuses on prior agreements rather than the interests of either party.
The battle now concerns whether the pact occurred when Szafranski gave the sample or when they signed the medical consent form requiring joint consent for the use of the embryos.
His attorney, Brian Schroeder, argued that couples often change their minds about having children and the courts should not be involved.
But Dunston’s lawyer, Abram Moore, countered: ‘At this point, that sperm no longer exists. It has fertilized an egg and become something entirely different: a pre-embryo. It is now too late for him to back out of his promises.’
Battle: The couple is now waiting for the Illinois Supreme Court to decide if they will hear the case
The case centers around a very modern problem – and an example of technology causing problems that far exceed the scope of the law. The need for a definitive ruling is needed now more than ever.
In 1985, 260 babies were born through assisted reproductive technology; in 2010, the number topped 61,000, according to the American Society for Reproductive Medicine.
‘This is a decision that really affects every person,’ he told MailOnline. ‘Hundreds of thousands of embryos are frozen in Illinois and this case affects what you do with these.
‘It raises some very fundamental issues about creating human life and when your consent is required and it affects all of those cases in the future.’