## Facts

- Karla Dunston was diagnosed with non-Hodgkin’s lymphoma and was advised that chemotherapy would likely cause infertility.
- Dunston asked Jacob Szafranski, her romantic partner, to provide sperm so pre-embryos could be created through IVF before treatment; he agreed.
- The parties met with physicians and signed a clinic “informed consent” form stating that no use could be made of embryos without both partners’ consent and that certain disputes would be handled pursuant to a court decree or settlement.
- The parties chose to fertilize all retrieved eggs; three viable pre-embryos were created and cryopreserved.
- The relationship ended shortly after Dunston began chemotherapy.
- Szafranski sued to prevent Dunston from using the pre-embryos, asserting an interest in avoiding genetic parenthood; Dunston counterclaimed for sole control to use them to have children.
- The trial court initially granted Dunston summary judgment; on first appeal the judgment was vacated and the case remanded.
- After a bench trial on remand, the trial court found an oral agreement allowing Dunston to use the pre-embryos without further consent; alternatively, it found Dunston should prevail under a balancing test, and entered judgment for Dunston.

## Issues

1. What framework governs disputes between unmarried partners over disposition and use of cryopreserved pre-embryos in Illinois.
2. Whether the parties formed an enforceable agreement (including an oral contract) authorizing Dunston to use the pre-embryos after the breakup without Szafranski’s contemporaneous consent.
3. If no enforceable agreement existed, whether Dunston’s interest in genetic parenthood outweighed Szafranski’s interest in avoiding genetic parenthood.

## Decision

- The appellate court affirmed the judgment awarding Dunston sole custody and control of the pre-embryos and the right to use them to attempt to have children.
- Applying Illinois’s contract-first framework, the court upheld the trial court’s finding of an enforceable oral contract authorizing Dunston’s use without further consent from Szafranski.
- The court held the clinic’s informed-consent form did not negate or supersede the parties’ oral agreement, treating it primarily as a medical/procedure document rather than a negotiated disposition contract.
- In the alternative, the court agreed that, even without an enforceable agreement, Dunston prevailed under a balancing test because the pre-embryos were likely her only opportunity for genetic parenthood, while Szafranski remained able to have children by other means.

## Legal Principles

- Disputes over cryopreserved pre-embryos are resolved by a hybrid method: courts first enforce any prior agreement between the parties; if none exists, courts weigh the parties’ competing interests regarding use or nonuse.
- An enforceable agreement governing embryo use may be proven by oral contract, depending on the evidence of mutual assent and scope.
- Clinic consent forms focused on medical risks and clinic procedures do not necessarily constitute, or override, a dispositive agreement between the parties about post-separation control and use.
- When balancing interests in the absence of an agreement, a party’s likely loss of the only realistic chance for genetic parenthood may outweigh the other party’s interest in avoiding genetic parenthood where alternative avenues for genetic parenthood remain available.

## Conclusion

The appellate court affirmed an award of control over cryopreserved pre-embryos to the partner seeking use, holding that an oral agreement authorized use without further consent and, alternatively, that her interest in preserving a likely last opportunity for genetic parenthood outweighed the other partner’s objection.


Szafranski v. Dunston, 34 N.E.3d 1132 (Ill. App. Ct. 1st Dist. 2015)