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SCOTUS Denies Appeal in Illinois Pre-Embryo Implantation Case

An Important Decision on Assisted Reproductive Technology

The Supreme Court of the United States recently rejected an appeal regarding the use of pre-embryos where the biological parents disagreed, meaning the lower court order will stand. The case is Scarfranski v. Dunston, 933 N.E.2d (App.Ct.Ill. June 18, 2013), and it was an issue of first impression in Illinois, meaning it is the only case in the state like it so far, and the opinion will set precedent.

In this case, a couple in a relationship decided to freeze pre-embryos created with their eggs and sperm before the woman went through cancer treatment. The couple made an oral agreement that the woman would be implanted with the pre-embryos. The couple met with an attorney, who drafted a “co-parent agreement,” stating that both parents would be part of the child’s life. The agreement also stated that the woman would have control over the embryos if the couple broke up. However, neither party actually signed this agreement, but they went through the process to make the pre-embryos anyway. They did sign a standard contract with the fertility clinic, which stated the pre-embryos would only be used if both agreed, but this agreement did not address any situation where the couple broke up.

The woman survived the cancer treatment and was unable then to produce any more eggs as a result. A month after the pre-embryos were created and cancer treatment started, the boyfriend broke up with the woman via text message. He filed a lawsuit to stop his former girlfriend from using the pre-embryos. She filed a counter-claim arguing:

  1. She should be given sole custody and control over the pre-embryos to use to have a child

  2. Breach of contract by the former boyfriend (the oral contract)

  3. Promissory estoppel, which is a legal term meaning she relied on the boyfriend’s actions to her detriment, therefore she should be able to enforce the promise to use the pre-embryos

The trial court agreed with the woman by using a “balancing interests” approach; the man appealed. The appeals court looked to a number of legal theories that have been used to decide cases like this in other jurisdictions, including: the balancing interests approach, the contractual approach and the contemporaneous mutual interest approach. The appeals court in Illinois decided the proper test is the “contractual approach,” whereby courts will honor the contract made at the time of in vitro fertilization, as long as it does not violate public policy.

The court remanded the case back to the trial court to consider the issue under the “contractual approach.” The trial court did so, but again found for the woman to be able to use the pre-embryos to get pregnant. They found the couple’s oral contract to allow the woman to be implanted with the pre-embryos was an important factor in the case.

Although the contract with the fertility clinic stated that the use of the embryos must be on agreement of the parties, the court held that this fertility contract did not address the situation if the parties split up. As they attempted to work out a written agreement, the boyfriend could have objected to the pre-embryos use if they broke up to modify the oral contract, but he did not. The appellate court and US Supreme Court denied the appeal, therefore this order stands. The woman is free to implant the embryos if she wishes.

These types of cases involving assisted reproductive technologies, relationships, parentage and children can be extraordinarily complicated, particularly in cases such as this, which was the first case like it in Illinois.

If you are considering the use of assisted reproductive technology to become a parent, it is exceedingly important that you speak to a family lawyer to draft a contract that will take into consideration all possible outcomes. When couples agree beforehand on all types of issues and reduce it to writing, it will reduce or avoid conflict later down the line.

The Hoffman Estates and Des Plaines attorneys at Pluymert, MacDonald, Hargrove & Lee, Ltd provide assistance throughout the Chicagoland area to clients in need of family law services, including divorce and child custody.

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