July 12, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This post continues from Friday’s.
The Illinois Court of Appeals that ruled that Jacob Szafranski has no say in how the embryos created by him and Karla Dunston are used or disposed of engaged in some remarkable legal legerdemain to do so. As I wrote last time, Dunston refused to use semen from an anonymous donor because the prospect made her “nervous.” Instead she called Szafranski at work where he agreed to donate sperm to fertilize her eggs.
But, having done so, their relationship fell apart and he got cold feet regarding the embryos they’d created. Dueling lawsuits ensued with Szafranski asserting the right to decide for himself how the fertilized eggs should be –or should not be — used. Dunston claimed it was her decision alone.
Now legally, the case is not a difficult one. It’s a simple matter of contract law. Dunston claimed that the conversation they had over the telephone while Szafranski was at work constituted an oral contract that is binding on Szafranski for all time. He claims the informed consent agreement the two of them signed at Northwest Medical Faculty Foundation either superseded the oral agreement or modified it.
Strangely, both courts found the written agreement to be without any legal effect. I don’t wish to delve too deeply into the tedium of contract law, but must at least scratch the surface.
An oral contract can be as binding as a written one, but as a practical matter, it can be difficult. That’s because the parties to the agreement must agree on all aspects of it and the agreement must be complete in and of itself. So if there’s any term of the agreement that’s unclear, overlooked, not discussed, not included, etc. then the agreement probably isn’t a contract. In legal parlance, there must be a meeting of the minds on all terms of the agreement for it to constitute and enforceable contract. The appellate court acknowledged this point of basic contract law.
An oral agreement is binding where there is an offer, an acceptance, and a meeting of the minds as to the terms of the agreement. To be enforceable, the material terms of a contract must also be definite and certain.
Simple enough. Clearly, as to Dunston’s provision of eggs and Szafranski’s provision of sperm for the purpose of IVF, there was a contract. Both understood what the agreement was and followed through with their respective promises. Fine.
But what neither of them did was mention, much less discuss what would be done with the fertilized eggs in the event they split up. That was not part of their oral agreement. But it was part of the written agreement both of them signed at the behest of Northwest Medical Faculty Foundation. It included this term:
No use can be made of these embryos without the consent of both partners (if applicable).
(I suspect the parenthetical phrase “if applicable” was included in the event the informed consent agreement form was used when the mother was using sperm from an anonymous donor. In that case, only one person, the mother, would be required to sign the consent form.)
Those words are about as clear an expression of the parties’ agreement that disposition of the embryos could be decided only by the agreement of both Dunston and Szafranski. And yet the courts managed to find a way to avoid giving any legal effect to those words. That they also managed to pretend that the oral agreement in some way did include a meeting of the minds regarding disposition of the embryos takes the majority opinion out of the realm of bad law and into that of judicial incompetence. Tellingly, it took them almost 52 pages to accomplish the feat. When it takes a court that many words to explain its decision in what is frankly a pretty straightforward contract case, you know they’re trying too hard. Frankly, the judges should have known that as well.
Apart from a recitation of the facts of the case and the competing legal claims of the parties, I could have disposed of the issue in two or three pages tops.
For an understanding of the issues that is altogether more clear-eyed and coherent than the majority’s, by all means read the dissent’s four-page effort. It proceeds something like this: disposition of the embryos is a material part of any agreement regarding IVF; there was no oral agreement between Dunston and Szafranski regarding disposition; therefore there was no enforceable contract on that issue between the two; but there was a written agreement about disposition in the informed consent agreement; that agreement required both parties’ consent; both parties didn’t consent; therefore Dunston can’t use the embryos without Szafranski’s OK.
That’s simplicity itself from a judge who’s determined to actually rule on the facts of the case and the law relating to those facts. The majority look very much like they decided the case and later tried to figure out a convincing rationale. They failed.
That failure becomes all the more obvious when we consider another of the dissenting judge’s salient points. It seems that the same court of appeals previously considered this case and sent it back to the trial court for a hearing. It’s the trial court’s decision following that hearing that’s under appeal. In its first opinion, the appellate court said that, in deciding this type of case, courts should balance one party’s interest in not having kids against the other party’s interest in having them. Generally speaking, courts come down on the side of the party who doesn’t want children because, as Jacob Szafranski said “I don't think anyone should ever have their right to decide when and how they become a parent decided for them...”
But that balancing test should only be used in certain cases. The dissent explained:
In fact, when discussing the balancing interests approach as applied by other jurisdictions, we noted that "none of these courts have awarded one party the right to implant pre-embryos in the face of a prior agreement stating that both parties' consents were required to make use of the pre-embryos."
In other words, the majority was so desperate to grant Dunston exclusive control over the embryos that it completely ignored dicta in its own ruling in this very case. And of course it not only did that, it ignored all those other jurisdictions whose rulings it purported to find persuasive. Put simply, the appellate court acknowledged that no court had ever forced procreation on a party when that person had an agreement saying disposition had to be agreed to by both parties. Against the entire weight of law on the issue, the Illinois Court of Appeals did exactly that.
Courts and laws routinely place fathers’ parental rights in the hands of mothers. They do so in an alarming array of cases, from child custody to adoption to paternity fraud and the like. This is another example. But here the court not only ignored age-old contract law but its own stated rationale in this very case to do so.
This case is a disgrace, but sadly, one with which we’re all too familiar.
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