July 10, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
An Illinois Court of Appeals has ordered that an IVF sperm donor may not contest the use or disposition of embryos resulting from his donation by the egg donor. According to this article, Jacob Szafranski calls the decision “forced procreation.” (International Business Times, 6/13/15).
"I don’t think anyone should ever have their right to decide when and how they become a parent decided for them, and this is exactly what this is doing," Szafranski told WMAQ-TV, Chicago, Friday.
To reach its decision, the Court of Appeals engaged in some of the shakiest legal reasoning to come down the pike in a long time, a fact the dissent makes abundantly clear.
Szafranski is a firefighter, paramedic and registered nurse. He met Karla Dunston, an emergency room physician, in 2001. They began dating in 2009, but neither of them expected their conflictual relationship to become permanent. In March of 2010, Dunston was diagnosed with non-Hodgkins lymphoma. Her doctors advised her to undergo chemotherapy, but explained that the treatments carried a high likelihood of infertility as a side-effect.
Dunston passionately wanted her own children, but said that using an anonymous sperm donor made her “nervous. So she contacted Szafranski by telephone at work to inquire whether he would be willing to donate sperm so that she could fertilize some of her eggs which could be used after her treatments were over. He agreed. Here’s how the court described the scene:
…Karla called Jacob and told him about her options. Jacob was at work and took his cell phone into the bathroom to talk. Karla told Jacob that the plan was to retrieve a large number of eggs, fertilize a portion, and then freeze the resulting pre-embryos while she underwent her chemotherapy treatment. Karla asked if he would "be willing to provide sperm to make pre-embryos with her." He responded "yes," telling Karla that he wanted to help her have a child.
The two contacted a fertility specialist at the Northwest Medical Faculty Foundation that they employed to harvest and fertilize her eggs with his sperm. Northwest provided an informed consent document that the two of them signed.
The 21-page Informed Consent contains seven sections, the majority of which explain the procedures and risks for IVF treatments to the mother and to the potential offspring. A section on page seven requires the parties to designate the number of eggs they wanted fertilized; in this section is a handwritten reference indicating the parties’ initial plan to "split" the retrieved eggs so that half would be fertilized and the other half would be frozen. This directive, however, was not initialed by the parties…
Pages 11 and 12 of the Informed Consent then explain Northwestern’s legal rights and obligations as follows:
"Because of the possibility of you and/or your partner’s separation, divorce, death or mental incapacitation, it is important, if you choose to cryopreserve your embryos, for you to decide what should be done with any of your cryopreserved embryos that remain in the laboratory in such an eventuality. Since this is a rapidly evolving field, both medically and legally, the clinic cannot guarantee what the available or acceptable avenues for disposition will be at any future date. At the present time, the options are:
1) discarding the cryopreserved embryos
2) donating the cryopreserved embryos for approved research studies.
3) donating the cryopreserved embryos to another couple in order to attempt pregnancy.
Embryos are understood to be your property, with rights of survivorship. No use can be made of these embryos without the consent of both partners (if applicable).
Three of Dunston’s eggs were eventually fertilized and frozen by Northwestern. Dunston apparently underwent her chemotherapy and her cancer now is in remission. But her relationship with Szafranski soon soured and he announced his unwillingness to unfreeze the pre-embryos or bring them to term. Dunston said she wanted to do just that. So Szafranski filed suit to stop her and she countersued for custody of the pre-embryos.
Now, at the outset, it’s clear that, under the agreement the two signed, Szafranski will have neither parental rights nor obligations toward any children that may eventuate from the pre-embryos. Whatever else may be true, he’s a sperm donor only and cannot be ordered to pay child support. Nor can he seek an order of paternity. Unlike all other biological dads, sperm donors who’ve signed agreements, aren’t usually legal fathers of the children their donation produces.
But Szafranski’s not worried about that. He’s worried about having his own offspring in the world without his involvement. He’s concerned that some future partner might consider him less than ideal as a husband or father if that were the case.
But whatever his motivations, he reasons that he and he alone should decide whether he fathers children, irrespective of his legal rights or duties to them. And of course, he’s got a point. The law is abundantly clear that women have no such obligation. Via the morning after pill, abortion, Baby Moses laws, and adoption, women who conceive children and/or carry them to term have many alternatives for avoiding motherhood.
Men have none. Once their sperm fertilizes an egg, they have no choice to become a parent or not. More accurately, their parental rights are placed in the hands of the woman whose egg they fertilized. If she wishes to bring the child to term, then he may have parental rights and obligations. Or he may not. Should she decide to terminate the pregnancy, then his rights go out the door. And should she simply decide to have the baby in secret, his rights to his child technically exist, but can only be exercised with her consent or his luck in somehow learning about his child.
Much of this could be solved easily enough by simply providing men an “opt out” right. That is, at some point during his partner’s pregnancy, a father could simply execute a legal document, much like the ones sperm donors execute, abjuring all parental rights and responsibilities.
Such a right would place men’s reproductive status more in line with women’s. Abortion rights are often justified on medical grounds; we don’t want a woman’s health, or that of her fetus, jeopardized by laws prohibiting abortion. That’s fair enough except data gathered by the Guttmacher Institute demonstrate that women’s decision to terminate a pregnancy almost never has anything to do with either her health or that of the fetus she’s carrying.
Indeed, when asked to list as many reasons as they wanted for having an abortion, only 11% of women said medical issues had anything to do with their decision. On the contrary, the overwhelming majority listed reasons of practicality such as lack of funds, not having completed their education or not having a good enough relationship with the father for their decision to abort.
Personally, I think that makes complete sense. There are too many people in the world as it is and we should do all we can to ensure that new babies are born into the best possible situations. That means having parents in stable relationships with the maturity and money to support them.
The point being that men are in the same situation as women when it comes to the practicalities of parenthood. Like women, men are just as capable of not being emotionally ready for a child, not having a good enough job, not having completed their education, not having a good enough relationship with the mother, etc. So fairness and equality demand that men have the same ability to avoid the consequences of sex that women do.
That’s what Jacob Szafranski was getting at and he’s right.
I’ll deal with the court’s shoddy opinion next time.
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