Szafranski v. Dunston

993 N.E.2d 502 (2013)

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Nature of the Case

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Facts

P and D entered into an agreement to undergo in vitro fertilization (IVF) together for the purpose of creating pre-embryos. D had been diagnosed with lymphoma and was expected to suffer ovarian failure and infertility as a result of her chemotherapy treatment. For the IVF both P and D signed an Informed Consent. a) In the event of divorce or dissolution of the marriage or partnership, NMFF will abide by the terms of the court decree or settlement agreement regarding the ownership and/or other rights to the embryos. b) In the event of the death or legal incapacitation of one partner, the other partner will retain decision-making authority regarding the embryos. c) In the event, both partners die or are legally incapacitated, or if a surviving partner dies or is legally incapacitated while the embryos are still stored at NMFF, the embryos shall become the sole and exclusive property of NMFF. In this event, I/we elect to: (please select and initial your choice). Note: both the patient and the partner must agree on disposition; as with other decisions relating to IVF, you are encouraged to discuss this issue.' P and D both initialed the space to donate the embryos. A co-parenting agreement was never signed by the couple. The co-parent agreement was never signed by the couple. Nevertheless, on April 6, 2010, P deposited sperm, and eight eggs were retrieved from D. The couple agreed to fertilize all eight based on the doctor's advice that doing so would be appellee's best chance of having a child, and three of the pre-embryos ultimately survived to viability. After their relationship ended, the parties disagreed over whether D could use the pre-embryos. P sued to enjoin D from using them, and D filed a counterclaim seeking sole custody and control over the pre-embryos. The circuit court awarded D sole custody and control of the pre-embryos and the right to use them to have children. P appealed.