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Frozen at Conception: Will there be a happy ending?

To preserve the possibility of future progeny many couples are using in vitro fertilization to create embryos that are then frozen. Those frozen embryos can be implanted many years later. Freezing embryos is very popular. Those in the industry estimate that there are currently up to one million embryos in storage.

The technology has allowed many couples to have a baby when the time is right. The legal problem arises when a couple whose genetic material created frozen embryos splits up. When that happens it is not uncommon for there to be a dispute concerning custody and control of the embryos. Who gets to decide if those embryos will have the opportunity to be born?

The first frozen embryo case in Illinois is currently on appeal for the second time. In that case, the woman was diagnosed with an aggressive form of cancer. Chemotherapy was a viable option but it would leave her infertile. So she asked her boyfriend (they had been romantically involved for about five months) to help her create some embryos that would be frozen for use at a later date. He agreed and less than two weeks later the embryos were created. About five months later the couple broke up and the boyfriend asked the woman not to use the embryos. She refused and that’s when the court case started.

The first time that the case went up on appeal court, the appellate court determined that the fate of the embryos would rest on any contractual agreement between the man and the woman. If there is no contract, then the court will balance the interests of the party who wants to use the embryos against the interest of the party who does not. When the embryos represent the last chance of one party to procreate, the court gave him or her the edge in the balancing of the interests (Szafranski v. Dunston, 2013 IL App (1st) 122975).

The ex-boyfriend does not want to be the absentee father of a child. On the other hand, this is the woman’s last chance to have children of her own. She took the steps necessary to make sure she could after fighting cancer. Furthermore, she is not asking the ex-boyfriend to be involved in raising any child that may result or to provide support. At this point the fate of the embryos is far from certain.

“True love’s kiss” is not the answer in this situation. It is hard to see how there can be a happy ending for everyone involved but it will certainly be an interesting case to follow.

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