                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           Szafranski v. Dunston, 2013 IL App (1st) 122975




Appellate Court              JACOB SZAFRANSKI, Plaintiff-Appellant, v. KARLA DUNSTON,
Caption                      Defendant-Appellee.



District & No.               First District, Second Division
                             Docket No. 1-12-2975


Filed                        June 18, 2013


Held                         In a case of first impression arising from a dispute over the disposition of
(Note: This syllabus         cryopreserved pre-embryos created by sperm donated by plaintiff and ova
constitutes no part of       donated by defendant, the trial court’s entry of summary judgment for
the opinion of the court     plaintiff based on the application of the balancing approach used by some
but has been prepared        state courts was vacated, and the appellate court remanded the cause for
by the Reporter of           application of the contractual approach adopted by the majority of other
Decisions for the            courts to the previously adduced facts and additional facts the parties may
convenience of the           want to present.
reader.)


Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CH-29654; the
Review                       Hon. Sophia H. Hall, Judge, presiding.



Judgment                     Reversed and remanded with instructions.
Counsel on                 Schroeder & McGuire, LLC, of Barrington (Brian A. Schroeder and
Appeal                     Carolyn McGuire, of counsel), for appellant.

                           K&L Gates, LLP, of Chicago (Abram I. Moore and Sara E. Fletcher, of
                           counsel), for appellee.


Panel                      JUSTICE QUINN delivered the judgment of the court, with opinion.
                           Presiding Justice Harris and Justice Simon concurred in the judgment and
                           opinion.



                                              OPINION

¶1          This appeal is a case of first impression in Illinois involving a dispute between plaintiff-
        appellant, Jacob Szafranski, and defendant-appellee, Karla Dunston (collectively, the
        couple), over the right to use pre-embryos created with appellant’s sperm and appellee’s ova.
        The circuit court ultimately granted appellee’s motion for summary judgment and denied
        appellant’s cross-motion for summary judgment, granting appellee full custody and control
        over the pre-embryos. On appeal, appellant contends that the circuit court erroneously denied
        his motion for summary judgment where his rights of privacy and liberty under the United
        States and Illinois Constitutions require his consent to any use of the pre-embryos at the time
        of the proposed use; and that the circuit court erroneously granted appellee’s motion for
        summary judgment where there are questions of fact regarding whether he agreed appellee
        could use the pre-embryos.

¶2                                         I. BACKGROUND
¶3          The record shows, in relevant part, that in March 2010, appellee was diagnosed with non-
        Hodgkin’s lymphoma and informed that her chemotherapy treatments would likely cause the
        loss of her fertility. She asked appellant, with whom she was in a relationship, if he would
        donate his sperm for the purpose of creating pre-embryos with her eggs, and he agreed to do
        so.
¶4          On March 25, 2010, the couple met with physicians and staff at Northwestern regarding
        the creation of the pre-embryos, and appellant deposited sperm to be frozen and used as a
        back-up on the date appellee’s eggs were retrieved. The couple also signed a document
        entitled “INFORMED CONSENT FOR ASSISTED REPRODUCTION” (the informed
        consent). Besides outlining the risks involved with in vitro fertilization, the informed consent
        states that “[n]o use can be made of these embryos without the consent of both partners (if
        applicable). *** In the event of divorce or dissolution of the marriage or partnership, NMFF
        [Northwestern Medical Faculty Foundation’s Division of Reproductive Endocrinology and
        Infertility] will abide by the terms of the court decree or settlement agreement regarding the

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     ownership and/or other rights to the embryos.” The informed consent contains the following
     disclaimer as well:
              “The law regarding [in vitro fertilization], embryo cryopreservation, subsequent
         embryo thaw and use, and parent-child status of any resulting child(ren) is, or may be,
         unsettled in the state in which either the patient, spouse, partner, or any current or future
         donor lives, or in Illinois, the state in which the NMFF Program is located. NMFF does
         not provide legal advice, and you should not rely on NMFF to give you any legal advice.
         You should consider consulting with a lawyer who is experienced in the areas of
         reproductive law and embryo cryopreservation as well as the disposition of embryos,
         including any questions or concerns about the present or future status of your embryos,
         your individual or joint access to them, your individual or joint parental status as to any
         resulting child, or about any other aspect of this consent and agreement.”
¶5       On the day of their meeting at Northwestern, the couple also met with an attorney, Nidhi
     Desai, to discuss the legal implications of creating pre-embryos, and Desai presented them
     with two possible arrangements: a co-parent agreement or a sperm donor agreement. On
     March 29, 2010, appellee sent Desai an e-mail opting for the former, and Desai sent the
     couple a draft of a co-parent agreement (the co-parent agreement). The stated primary
     purpose of the co-parent agreement was “to memorialize the Parties’ intent and agreement
     that they shall both be established as the legal co-parents of the Child.” The co-parent
     agreement provided, inter alia, that the couple would attempt to participate in at least one
     in vitro fertilization and pre-embryo transfer cycle in which appellant would “provide sperm
     samples to create the pre-embryos,” and that appellant “agrees to undertake all legal,
     custodial, and other obligations to the Child regardless of any change of circumstance
     between the Parties.” (Emphasis in original.) The co-parent agreement also provided that
     “[a]ny eggs retrieved and cryopreserved as a result of this [in vitro fertilization] retrieval
     shall be under Karla’s sole control” and that “[s]hould the Intended Parents separate, Karla
     will control the disposition of the pre-embryos.” Further, the co-parent agreement provided:
     “Jacob acknowledges and agrees that Karla is likely to be unable to create new healthy
     embryos subsequent to the chemotherapy regiment she will undergo, and Jacob specifically
     agrees that Karla should have the opportunity to use such embryos to have a child.”
¶6       The co-parent agreement was never signed by the couple. Nevertheless, on April 6, 2010,
     appellant deposited sperm and eight eggs were retrieved from appellee. 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. The
     next day, appellee began her chemotherapy treatment.
¶7       In May 2010, appellant sent appellee a text message ending their relationship. On August
     22, 2011, he filed a pro se complaint in the circuit court of Cook County seeking to
     permanently enjoin appellee from using the pre-embryos so as to “preserv[e] [his] right to
     not forcibly father a child against his will.” On September 1, 2011, appellee responded with
     a three-count verified counterclaim: in count I, she sought a declaratory judgment granting
     her sole custody and control over the pre-embryos and the right to use them to bear children;
     in count II, she alleged breach of contract and requested specific performance of the parties’
     agreement; and in count III, she sought relief under a theory of promissory estoppel.

                                               -3-
¶8          At the close of discovery, the parties filed cross-motions for summary judgment.
       Appellee asserted, inter alia, that appellant was bound by the terms of the co-parent
       agreement because, even though he did not sign it, he fully performed his one “critical”
       obligation under the agreement and provided sperm samples to create the embryos. She also
       asserted that appellant induced her to rely on his representation that he would help her have
       her own children, and that she was harmed by that reliance because now she cannot go back
       and use a random sperm donor to fertilize her eggs. Additionally, appellee asserted that if the
       court found that appellant was not bound by the co-parent agreement or estopped from
       preventing use of the embryos, the court should follow Reber v. Reiss, 42 A.3d 1131 (Pa.
       Super. Ct. 2012), and balance the interests of the parties, finding that her interest in having
       her own biological children outweighs appellant’s interest in not fathering a child. Appellee
       attached to her motion a letter from Dr. Eve Feinberg stating that appellee has ovarian failure
       as a result of her chemotherapy treatment which has “rendered [her] unable to conceive a
       child with the use of her own oocytes.”
¶9          Appellant claimed that he was entitled to summary judgment based on the right not to
       be a parent under the United States and Illinois Constitutions. In support of his federal
       constitutional claim, he cited abortion case law and asserted that “the right to an abortion is
       a semantic recasting of the constitutional right not to be a parent.” He argued that unlike in
       the abortion context, though, a man and woman are in equal positions when it comes to
       cryopreserved embryos, because they are not inside the woman’s body. Therefore, he argued,
       “the constitutional right not to be a parent means the consent of both the woman and the man
       is required for any use of the preembryos.” As for the Illinois Constitution, appellant adopted
       the same argument and noted that “the Illinois right to privacy is broader than the federal
       right.” He further asserted that Reber did not apply and that In re Marriage of Witten, 672
       N.W.2d 768 (Iowa 2003), was “[m]ore in line with the federal and Illinois constitutional right
       not to be a parent.” Lastly, appellant maintained that appellee’s motion for summary
       judgment should be denied because there was a question of fact regarding whether a contract
       existed.
¶ 10        On September 17, 2012, the circuit court granted appellee’s motion for summary
       judgment and denied appellant’s motion for summary judgment. The court noted that the
       case was one of first impression in Illinois and that appellee’s “legal theories include[d]
       contract, promissory estoppel, and then even beyond that the balancing of the interests of the
       parties, which is discussed in Reber.” The court stated:
                “The Court is not persuaded by the legal arguments made by [appellant] in his brief
            as applied to all of the facts in this case.
                The Court is persuaded by the reasoning in the cases that [appellee] has cited in
            support of each of her legal theories for her opportunity to use the embryos to become
            a biological parent.
                And accordingly, the Court adopts the legal reasoning that’s contained in the cases
            that are relied on by [appellee] in her brief.”
       The following day, the court entered a written order of its ruling, and ordered that appellee
       “shall have full custody and control over the disputed preembryos that are presently in the


                                                -4-
       custody of Northwestern Hospital and may use them to attempt to have children.” Pursuant
       to Illinois Supreme Court Rule 305 (eff. July 1, 2004), the court stayed enforcement of the
       order pending a disposition on appeal.

¶ 11                                      II. ANALYSIS
¶ 12       Appellant now contends that the circuit court erroneously denied his motion for summary
       judgment, claiming that his rights of privacy and liberty under the United States and Illinois
       Constitutions require that he consent to any use of the pre-embryos. He also contends that
       the court erroneously granted appellee’s motion for summary judgment where questions of
       fact exist regarding whether he agreed appellee could use the pre-embryos.

¶ 13                                    A. Standard of Review
¶ 14        “Summary judgment is appropriate when ‘the pleadings, depositions and admissions on
       file, together with the affidavits, if any, show that there is no issue as to any material fact and
       that the moving party is entitled to judgment as a matter of law.’ ” Tunca v. Painter, 2012
       IL App (1st) 110930, ¶ 13 (quoting 735 ILCS 5/2-1005(c) (West 2010)). We review de novo
       the circuit court’s ruling on a motion for summary judgment. Tunca, 2012 IL App (1st)
       110930, ¶ 13.

¶ 15                       B. The Law of Cryopreserved Pre-Embryos
¶ 16       This case presents an issue of first impression in Illinois; namely, who controls the
       disposition of cryopreserved pre-embryos created with one party’s sperm and another party’s
       ova. Courts in other jurisdictions have addressed this issue under various circumstances and
       generally conducted three types of analyses in resolving this question: (1) a contractual
       approach; (2) a contemporaneous mutual consent approach; and/or (3) a balancing approach.
       Reber, 42 A.3d at 1134. Each of these approaches is discussed, in turn, below.

¶ 17                                1. The Contractual Approach
¶ 18        The first approach applied by courts in these circumstances is the contractual approach.
       Under this approach, courts will enforce contracts governing the disposition of pre-embryos
       which were entered into at the time of in vitro fertilization so long as they do not violate
       public policy. Witten, 672 N.W.2d at 776. The benefits of a contractual approach are that it
       encourages parties to enter into agreements that will avoid future costly litigation, and that
       it removes state and court involvement in private family decisions. As noted by the Court of
       Appeals of New York:
            “[P]arties should be encouraged in advance, before embarking on [in vitro fertilization]
            and cryopreservation, to think through possible contingencies and carefully specify their
            wishes in writing. Explicit agreements avoid costly litigation in business transactions.
            They are all the more necessary and desirable in personal matters of reproductive choice,
            where the intangible costs of any litigation are simply incalculable. Advance directives,
            subject to mutual change of mind that must be jointly expressed, both minimize

                                                  -5-
           misunderstandings and maximize procreative liberty by reserving to the progenitors the
           authority to make what is in the first instance a quintessentially personal, private
           decision. Written agreements also provide the certainty needed for effective operation of
           [in vitro fertilization] programs [citations].
                ***
                *** To the extent possible, it should be the progenitors– not the State and not the
           courts–who by their prior directive make this deeply personal life choice.” Kass v. Kass,
           696 N.E.2d 174, 180 (N.Y. 1998).
¶ 19       Criticism of the contractual approach, on the other hand, includes that it “ ‘insufficiently
       protects the individual and societal interests at stake.’ ” Witten, 672 N.W.2d at 777 (quoting
       Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights
       Approach to Frozen Embryo Disputes, 84 Minn. L. Rev. 55, 88-89 (1999)). Among the
       concerns is that “ ‘decisions about the disposition of frozen embryos implicate rights central
       to individual identity,’ ” and that “ ‘[o]n matters of such fundamental personal importance,
       individuals are entitled to make decisions consistent with their contemporaneous wishes,
       values, and beliefs.’ ” Witten, 672 N.W.2d at 777 (quoting Coleman, supra, at 88-89). Of
       further concern is that “ ‘requiring couples to make binding decisions about the future use
       of their frozen embryos ignores the difficulty of predicting one’s future response to life-
       altering events such as parenthood,’ ” and that “ ‘treating couples’ decisions about the future
       use of their frozen embryos as binding contracts undermines important values about families,
       reproduction, and the strength of genetic ties.’ ” Witten, 672 N.W.2d at 777 (quoting
       Coleman, supra, at 88-89).
¶ 20       Notwithstanding these criticisms, the contractual approach has been applied/endorsed in
       five states. See Kass, 696 N.E.2d at 180 (New York); In re Marriage of Dahl, 194 P.3d 834,
       840-41 (Or. Ct. App. 2008) (Oregon); Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992)
       (Tennessee); Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App. 2006) (Texas); In re Marriage
       of Litowitz, 48 P.3d 261, 268 (Wash. 2002), amended by 53 P.3d 516 (Wash. 2002)
       (Washington); see also York v. Jones, 717 F. Supp. 421, 425 (E.D. Va. 1989) (noting that
       cryopreservation agreement was a bailment contract between husband and wife and the
       medical institute); but see A.Z. v. B.Z., 725 N.E.2d 1051, 1057 (Mass. 2000) (Massachusetts).
¶ 21       In Kass, a husband and wife underwent in vitro fertilization when the wife could not
       become pregnant due to prenatal exposure to diethylstilbestrol. Kass, 696 N.E.2d at 175.
       They signed a consent form stating that “ ‘[o]ur frozen pre-zygotes will not be released from
       storage for any purpose without the written consent of both of us.’ ” (Emphasis in original.)
       Kass, 696 N.E.2d at 176. They also signed a consent form stating:
           “ ‘In the event that we no longer wish to initiate a pregnancy or are unable to make a
           decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our
           desire for the disposition of our pre-zygotes and direct the IVF program to (choose one):
           ***
                (b) Our frozen pre-zygotes may be examined by the IVF Program for biological
           studies and be disposed of by the IVF Program for approved research investigation as
           determined by the IVF Program.’ ” Kass, 696 N.E.2d at 176-77.

                                                 -6-
       The wife subsequently commenced a matrimonial action and requested sole custody of the
       pre-zygotes in order to undergo another implantation procedure, and the husband opposed
       their removal and any further attempts by the wife to achieve pregnancy. Kass, 696 N.E.2d
       at 177. The Court of Appeals of New York held that “[a]greements between progenitors, or
       gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid
       and binding, and enforced in any dispute between them.” Kass, 696 N.E.2d at 180. The court
       then found that “the informed consents signed by the parties unequivocally manifest[ed] their
       mutual intention that in the present circumstances the pre-zygotes be donated for research
       to the IVF program.” Kass, 696 N.E.2d at 181.
¶ 22       In Davis, a husband and wife underwent in vitro fertilization because the wife was
       without functional fallopian tubes by which she could conceive a child naturally. Davis, 842
       S.W.2d at 591. They did not execute a written agreement specifying the disposition of
       unused pre-embryos, however, and they could not agree during their divorce proceedings on
       who would have custody of them. Davis, 842 S.W.2d at 589-90. The Supreme Court of
       Tennessee held:
               “We believe, as a starting point, that an agreement regarding disposition of any
           untransferred preembryos in the event of contingencies (such as the death of one or more
           of the parties, divorce, financial reversals, or abandonment of the program) should be
           presumed valid and should be enforced as between the progenitors. This conclusion is
           in keeping with the proposition that the progenitors, having provided the gametic
           material giving rise to the preembryos, retain decision-making authority as to their
           disposition.” Davis, 842 S.W.2d at 597.
       Regardless of this holding, the court found that there was no agreement and turned to
       balancing the interests of the parties. Davis, 842 S.W.2d at 598, 603.
¶ 23       In Marriage of Dahl, a husband and wife underwent in vitro fertilization and signed an
       “Embryology Laboratory Specimen Storage Agreement,” which stated:
               “ ‘In connection with requests for transfer of the Embryos or upon termination of this
           Agreement, UNIVERSITY is hereby irrevocably authorized and directed to transfer or
           dispose of the Embryos as follows:
               ***
               B. If the CLIENTS are unable or unwilling to execute a joint authorization, the
           CLIENTS hereby designate the following CLIENT or other representative to have the
           sole and exclusive right to authorize and direct UNIVERSITY to transfer or dispose of
           the Embryos, pursuant to the terms of this Agreement[.]’ ” (Emphasis in original.)
           Marriage of Dahl, 194 P.3d at 836.
       The wife’s name was printed directly below that paragraph in a space designated “Name,”
       and the initials of her and husband were next to her name in spaces designated for the parties’
       approval. Marriage of Dahl, 194 P.3d at 836. The couple subsequently decided to dissolve
       their marriage and could not agree on the disposition of six frozen embryos that remained
       from the in vitro fertilization process. Marriage of Dahl, 194 P.3d at 836. The Court of
       Appeals of Oregon, after reviewing relevant case law, adopted a contractual approach to
       resolving the issue, noting:

                                                -7-
           “[T]he general framework set forth by the courts in Davis and Kass, in which courts give
           effect to the progenitors’ intent by enforcing the progenitors’ advance directive regarding
           the embryos, is persuasive. Moreover, giving effect to a valid agreement evincing the
           parties’ intent regarding disposition of embryos is consistent with our statutory and case
           law that give similar effect to prenuptial agreements and agreements made during a
           marriage.” Marriage of Dahl, 194 P.3d at 840.
       Ultimately, the court found that the agreement executed by the couple evinced their intent
       that the wife would decide the disposition of the embryos. Marriage of Dahl, 194 P.3d at
       841.
¶ 24       In Roman, a husband and wife underwent in vitro fertilization after “the traditional
       avenues of childbirth” and several attempts at artificial insemination proved unsuccessful.
       Roman, 193 S.W.3d at 42. They signed a document entitled “Informed Consent for
       Cryopreservation of Embryos” wherein they chose to discard the embryos in case of divorce.
       Roman, 193 S.W.3d at 42. Following a divorce trial, the trial court ordered that wife take
       possession of the three remaining embryos. Roman, 193 S.W.3d at 43. On appeal, the Court
       of Appeals of Texas found that agreements controlling embryo disposition were valid,
       stating:
                “We believe that allowing the parties voluntarily to decide the disposition of frozen
           embryos in advance of cryopreservation, subject to mutual change of mind, jointly
           expressed, best serves the existing public policy of this State and the interests of the
           parties. We hold, therefore, that an embryo agreement that satisfies these criteria does not
           violate the public policy of the State of Texas.” Roman, 193 S.W.3d at 50.
       The court then held that “the embryo agreement provide[d] that the frozen embryos are to
       be discarded in the event of divorce,” and that the trial court abused its discretion in not
       enforcing the agreement. Roman, 193 S.W.3d at 54.
¶ 25       In Litowitz, a husband and wife decided to have a child through in vitro fertilization and
       had five pre-embryos created with the husband’s sperm and an egg donor’s eggs. Litowitz,
       48 P.3d at 262. Three of the pre-embryos were implanted in a surrogate mother and produced
       a child, and two were cryopreserved and stored in a clinic. Litowitz, 48 P.3d at 262-63. The
       husband and wife signed a “consent and authorization for preembryo cryopreservation
       contract” with the clinic which stated, “In the event we are unable to reach a mutual decision
       regarding the disposition of our pre-embryos, we must petition to a Court of competent
       jurisdiction for instructions concerning the appropriate disposition of our pre-embryos.”
       Litowitz, 48 P.3d at 263. They also indicated in the contract that they wanted their pre-
       embryos to be thawed but not allowed to undergo further development in the event that their
       pre-embryos had been maintained in cryopreservation for five years. Litowitz, 48 P.3d at 264.
       The couple separated, and during the dissolution proceedings, the husband sought to put the
       remaining pre-embryos up for adoption while the wife sought to implant the remaining pre-
       embryos in a surrogate mother. Litowitz, 48 P.3d at 264. The trial court awarded the pre-
       embryos to the husband based upon the “best interest of the child.” Litowitz, 48 P.3d at 264.
       On appeal, the Supreme Court of Washington found that because the wife did not produce
       the eggs used to create the pre-embryos and had no biological connection to them, any right


                                                 -8-
       she had to the pre-embryos would have to be based solely upon contract. Litowitz, 48 P.3d
       at 267. The court further noted that because the couple had not reached a mutual decision
       regarding disposition of the pre-embryos, it was appropriate for the courts to determine their
       disposition under the cryopreservation contract. Litowitz, 48 P.3d at 268. The court
       ultimately reversed, holding that under the terms of the contract, “the remaining preembryos
       would have been thawed out and not allowed to undergo further development” because more
       than five years had passed. Litowitz, 48 P.3d at 271.
¶ 26       In A.Z., on the other hand, the Supreme Judicial Court of Massachusetts declined to
       honor the parties’ advance agreement regarding the disposition of pre-embryos on the
       grounds of public policy. There, a husband and wife underwent in vitro fertilization due to
       the wife’s difficulties conceiving a child. A.Z., 725 N.E.2d at 1052. They signed a consent
       form stating that if they “ ‘[s]hould become separated, [they] both agree[d] to have the
       embryo(s) ... return[ed] to [the] wife for implant.’ ” A.Z., 725 N.E.2d at 1054. At the time of
       their divorce, one vial containing four frozen pre-embryos remained in storage, and the
       husband filed a motion for a permanent injunction to prohibit the wife from using them. A.Z.,
       725 N.E.2d at 1053. On appeal, the Supreme Judicial Court of Massachusetts initially
       expressed doubt that the consent form “represent[ed] the intent of the husband and the wife
       regarding disposition of the preembryos in the case of a dispute between them.” A.Z., 725
       N.E.2d at 1056. The court noted, inter alia:
           “[T]he consent form’s primary purpose is to explain to the donors the benefits and risks
           of freezing, and to record the donors’ desires for disposition of the frozen preembryos at
           the time the form is executed in order to provide the clinic with guidance if the donors
           (as a unit) no longer wish to use the frozen preembryos. The form does not state, and the
           record does not indicate, that the husband and wife intended the consent form to act as
           a binding agreement between them should they later disagree as to the disposition.
           Rather, it appears that it was intended only to define the donors’ relationship as a unit
           with the clinic.” A.Z., 725 N.E.2d at 1056.
       In any event, the court concluded:
           “[E]ven had the husband and the wife entered into an unambiguous agreement between
           themselves regarding the disposition of the frozen preembryos, we would not enforce an
           agreement that would compel one donor to become a parent against his or her will. As
           a matter of public policy, we conclude that forced procreation is not an area amenable to
           judicial enforcement.” A.Z., 725 N.E.2d at 1057-58.
       Thus, while a majority of courts utilize the contractual approach and have sought to give
       effect to the parties’ advance directives regarding the disposition of pre-embryos, there is not
       a unanimous view that such agreements are within the public interest. The next approach
       places the emphasis on the contemporaneous desires of the parties.

¶ 27                  2. The Contemporaneous Mutual Consent Approach
¶ 28       The second approach applied by courts is known as the contemporaneous mutual consent
       model. This approach proposes that “ ‘no embryo should be used by either partner, donated
       to another patient, used in research, or destroyed without the [contemporaneous] mutual

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       consent of the couple that created the embryo.’ ” Witten, 672 N.W.2d at 778 (quoting
       Coleman, supra, at 110). Under this approach,
            “ ‘advance instructions would not be treated as binding contracts. If either partner has a
            change of mind about disposition decisions made in advance, that person’s current
            objection would take precedence over the prior consent. If one of the partners rescinds
            an advance disposition decision and the other does not, the mutual consent principle
            would not be satisfied and the previously agreed-upon disposition decision could not be
            carried out.
                ***
                When the couple is unable to agree to any disposition decision, the most appropriate
            solution is to keep the embryos where they are–in frozen storage. Unlike the other
            possible disposition decisions–use by one partner, donation to another patient, donation
            to research, or destruction–keeping the embryos frozen is not final and irrevocable. By
            preserving the status quo, it makes it possible for the partners to reach an agreement at
            a later time.’ ” Witten, 672 N.W.2d at 778 (quoting Coleman, supra, at 110-12).
       Like the contractual approach, the contemporaneous mutual consent approach acknowledges
       that “ ‘decisions about the disposition of frozen embryos belong to the couple that created
       the embryo, with each partner entitled to an equal say in how the embryos should be
       disposed.’ ” Witten, 672 N.W.2d at 777 (quoting Coleman, supra, at 81). However, it
       addresses many of the concerns with the contractual approach by allowing a party to change
       his or her mind prior to use of the pre-embryos. See Witten, 672 N.W.2d at 777-78.
¶ 29        The contemporaneous mutual consent approach is not immune from criticism either,
       though. While the approach benefits from ease of application and at least the appearance of
       respecting the rights of the parties’ involved, the Superior Court of Pennsylvania has aptly
       noted: “This approach strikes us as being totally unrealistic. If the parties could reach an
       agreement, they would not be in court.” Reber, 42 A.3d at 1135 n.5.
¶ 30        Iowa is the only state to have expressly adopted the contemporaneous mutual consent
       approach. See Witten, 672 N.W.2d at 783. In Witten, a husband and wife underwent in vitro
       fertilization because the wife was unable to conceive children naturally. Witten, 672 N.W.2d
       at 772. They signed an informed consent document entitled “Embryo Storage Agreement,”
       which stated that “ ‘[t]he Client Depositors *** understand and agree that containers of
       embryos stored pursuant to this agreement will be used for transfer, release or disposition
       only with the signed approval of both Client Depositors.’ ” Witten, 672 N.W.2d at 772. At
       trial on a dissolution action, the wife sought custody of the pre-embryos to have them
       implanted in her or a surrogate, but the husband did not want the wife to use them and
       requested a permanent injunction prohibiting either party from transferring, releasing, or
       utilizing the pre-embryos without both of their written consents. Witten, 672 N.W.2d at 772-
       73. On appeal, the Supreme Court of Iowa declined to adopt a contractual approach and held
       that “agreements entered into at the time in vitro fertilization is commenced are enforceable
       and binding on the parties, ‘subject to the right of either party to change his or her mind
       about disposition up to the point of use or destruction of any stored embryo.’ ” Witten, 672
       N.W.2d at 782 (quoting J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001)). The court then noted


                                                -10-
       “grave public policy concerns” with a balancing test, and ultimately adopted the
       contemporaneous mutual consent approach, holding that there could be no use or disposition
       of the couple’s pre-embryos unless the husband and wife reached an agreement. Witten, 672
       N.W.2d at 783.
¶ 31       One commentator has noted that “the Witten opinion puts someone like [the husband] in
       a particularly powerful position.” Mark P. Strasser, You Take the Embryos But I Get the
       House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce, 57
       Buff. L. Rev. 1159, 1210 (2009). He notes:
               “For example, the court said that the party opposing destruction of the embryos
           would bear the costs of their cryopreservation. Someone who wanted to get back at an
           ex-spouse might well say that he or she had no interest in cryopreserving the embryos,
           thereby shifting the costs to his or her ex-spouse. Further, one could imagine such a
           person imposing continuing psychic damage by hinting that he or she might consent to
           the ex-spouse’s use of the embryos sometime in the future–the ex-spouse might well
           continue to be on an emotional rollercoaster when considering the possibility of finally
           becoming a parent. Or the embryos might in effect be held hostage–they would be
           released for use only if the ex-spouse were willing to give up something valuable in
           return, for example, in a property settlement or in exchange for more favorable support
           terms.” Strasser, supra, at 1210.
       In this regard, the contemporaneous mutual consent model “give[s] each progenitor a
       powerful bargaining chip at a time when individuals might very well be tempted to punish
       their soon-to-be ex-spouses,” “[which] makes no sense and may invite individuals to hold
       hostage their ex-partner’s ability to parent a biologically related child in order to punish or
       to gain other advantages.” Strasser, supra, at 1225. The next approach attempts to address
       these concerns by placing the disposition decision exclusively in the hands of the court.

¶ 32                                 3. The Balancing Approach
¶ 33       The third and final approach is for the court to balance the interests of the parties. Under
       this approach, courts enforce contracts between the parties, at least to a point, then balance
       their interests in the absence of an agreement. Although this approach allows courts leeway
       to determine who is entitled to use pre-embryos absent an agreement regarding disposition,
       the Supreme Court of Iowa has criticized this approach for its internal inconsistency, noting:
           “Public policy concerns similar to those that prompt courts to refrain from enforcement
           of contracts addressing reproductive choice demand even more strongly that we not
           substitute the courts as decision makers in this highly emotional and personal area.
           Nonetheless, that is exactly what happens under the decisional framework based on the
           balancing test because the court must weigh the relative interests of the parties in
           deciding the disposition of embryos when the parties cannot agree.” Witten, 672 N.W.2d
           at 779.
       Notwithstanding this concern, the balancing approach has been applied in three states. See
       J.B. v. M.B., 783 A.2d 707, 719 (N.J. 2001) (New Jersey); Reber, 42 A.3d at 1135
       (Pennsylvania); Davis, 842 S.W.2d at 603 (Tennessee).

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¶ 34        The first court to resort to balancing the interests of the parties was the Supreme Court
       of Tennessee in Davis. Reber, 42 A.3d at 1135. In that case, as discussed earlier, the court
       initially looked to whether there was an agreement between the parties. Then, having found
       no agreement, the court turned to balancing the interests of the parties, noting:
                “Resolving disputes over conflicting interests of constitutional import is a task
            familiar to the courts. One way of resolving these disputes is to consider the positions of
            the parties, the significance of their interests, and the relative burdens that will be
            imposed by differing resolutions. In this case, the issue centers on the two aspects of
            procreational autonomy–the right to procreate and the right to avoid procreation. We start
            by considering the burdens imposed on the parties by solutions that would have the effect
            of disallowing the exercise of individual procreational autonomy with respect to these
            particular preembryos.” Davis, 842 S.W.2d at 598, 603.
       There, the court ultimately concluded that the wife’s interest in donating the pre-embryos to
       another couple was not as significant as the husband’s interest in avoiding parenthood where
       “he would face a lifetime of either wondering about his parental status or knowing about his
       parental status but having no control over it.” Davis, 842 S.W.2d at 604.
¶ 35        The next court to adopt a balancing approach was the Supreme Court of New Jersey in
       J.B. In that case, a husband and wife underwent in vitro fertilization after wife learned that
       she had a condition which prevented her from becoming pregnant. J.B. v. M.B., 783 A.2d
       707, 709 (N.J. 2001). They signed a consent form stating that they agreed that “ ‘all control,
       direction, and ownership of our tissues will be relinquished to the IVF Program under the
       following circumstances *** [a] dissolution of our marriage by court order, unless the court
       specifies who takes control and direction of the tissues.’ ” (Emphasis omitted.) J.B., 783
       A.2d at 709, 713. When the wife filed for divorce, the trial court granted her the right to
       destroy the remaining pre-embryos. J.B., 783 A.2d at 710-11. The husband appealed, arguing
       that the trial court should have enforced an alleged agreement between J.B. and M.B. that the
       pre-embryos should be donated to infertile couples in the event the couple chose not to
       implant them in J.B. On appeal, the Supreme Court of New Jersey adopted a rule “to enforce
       agreements entered into at the time in vitro fertilization is begun, subject to the right of either
       party to change his or her mind about disposition up to the point of use or destruction of any
       stored preembryos.” J.B., 783 A.2d at 719. Then, “if there is disagreement as to disposition
       because one party has reconsidered his or her earlier decision, the interests of both parties
       must be evaluated.” J.B., 783 A.2d at 719. Applying this rule, the court found that the
       consent form did not manifest a clear intent by the couple regarding disposition of the pre-
       embryos because it allowed the parties to obtain a court order directing their disposition in
       the event of divorce. J.B., 783 A.2d at 713. The court thus turned to balancing the parties
       interests, finding that the husband’s right to procreate would not be lost if he was denied an
       opportunity to use or donate the pre-embryos because he was “already a father and is able to
       become a father to additional children, whether through natural procreation or further in vitro
       fertilization,” but that the wife’s right not to procreate could be lost through attempted use
       or through donation of the pre-embryos. J.B., 783 A.2d at 717. Under the circumstances, the
       court concluded that it would “not force [the wife] to become a biological parent against her
       will.” J.B., 783 A.2d at 717.

                                                  -12-
¶ 36        Most recently, the Superior Court of Pennsylvania applied a balancing approach in Reber.
       In that case, a husband and wife underwent in vitro fertilization to preserve the wife’s ability
       to conceive a child after she was diagnosed with breast cancer and prescribed cancer
       treatments. Reber, 42 A.3d at 1132-33. The husband subsequently filed for divorce, and the
       wife sought their pre-embryos for implantation. Reber, 42 A.3d at 1133. After balancing the
       parties’ interests, the trial court awarded the wife the pre-embryos based on her inability to
       achieve biological parenthood without use of the pre-embryos. Reber, 42 A.3d at 1134. On
       appeal, the Superior Court of Pennsylvania noted that it did not need to decide whether to
       adopt a specific approach because the couple had not signed the portion of the consent form
       related to the disposition of the pre-embryos in the event of divorce, and “it was quite
       obvious that Husband and Wife could not come to a contemporaneous mutual agreement
       regarding the pre-embryos.” Reber, 42 A.3d at 1136. Under the circumstances, the court
       found that “the balancing approach [was] the most suitable test” and concluded that the
       balance of interests weighed in the wife’s favor because “Husband and Wife never made an
       agreement prior to undergoing IVF, and these pre-embryos are likely Wife’s only opportunity
       to achieve biological parenthood and her best chance to achieve parenthood at all.” Reber,
       42 A.3d at 1136, 1142.
¶ 37        Courts applying the balancing approach have noted that a party’s inability to have a child
       weighs in his or her favor. See Reber, 42 A.3d at 1140; Davis, 842 S.W.2d at 604 (noting
       that “[t]he case would be closer if [wife] were seeking to use the preembryos herself, but only
       if she could not achieve parenthood by any other reasonable means”); but see J.B. v. M.B.,
       783 A.2d 707, 720 (N.J. 2001) (expressing “no opinion in respect of a case in which a party
       who has become infertile seeks use of stored preembryos against the wishes of his or her
       partner, noting only that the possibility of adoption also may be a consideration, among
       others, in the court’s assessment”). However, 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.

¶ 38                                  C. The Proper Approach
¶ 39       In the case at bar, the parties urge this court to apply different approaches: appellant
       argues that this court should apply the contemporaneous mutual consent approach adopted
       by the Supreme Court of Iowa in Witten; and appellee argues that this court should either
       enforce the parties’ agreements or balance their interests as in Reber. The reasons for the
       parties’ respective positions are self-evident. If this court adopts the contemporaneous mutual
       consent approach, requiring the consent of both appellant and appellee prior to use of the pre-
       embryos, appellant prevails because he has the power to unilaterally prevent use of the pre-
       embryos by withholding his consent. If this court adopts the contractual or balanced interests
       approach, appellee can argue that the parties had an agreement allowing her to use the pre-
       embryos, and if this court finds no such agreement, she can still argue that she has a
       compelling interest in the pre-embryos as a result of her infertility.
¶ 40       Having considered the arguments of the parties and case law from other jurisdictions, we
       believe that the best approach for resolving disputes over the disposition of pre-embryos


                                                -13-
       created with one party’s sperm and another party’s ova is to honor the parties’ own mutually
       expressed intent as set forth in their prior agreements. We therefore join those courts that
       have held that “[a]greements between progenitors, or gamete donors, regarding disposition
       of their pre-zygotes should generally be presumed valid and binding, and enforced in any
       dispute between them.” Kass, 696 N.E.2d at 180.
¶ 41        We believe that honoring parties’ agreements properly allows them, rather than the
       courts, to make their own reproductive choices while also providing a measure of certainty
       necessary to proper family planning. We also believe that honoring such agreements will
       promote serious discussions between the parties prior to participating in in vitro fertilization
       regarding their desires, intentions, and concerns. The American Medical Association has
       expressed similar sentiments, stating, “Advance agreements are recommended for deciding
       the disposition of frozen pre-embryos in the event of divorce or other changes in
       circumstances. Advance agreements can help ensure that the gamete providers undergo IVF
       and pre-embryo freezing after a full contemplation of the consequences ***.” AMA Code
       of Medical Ethics Op. 2.141 (June 1994). Although we acknowledge the concern that
       individuals may change their minds regarding parenthood during the process of in vitro
       fertilization, we note that this concern can be adequately addressed in a contract and should
       be discussed in advance of the procedure. We do not believe, however, that such a concern
       should allow one party’s indecisiveness to plague a process, fraught with emotions and
       lifelong repercussions, with uncertainty at another’s expense.
¶ 42        In addition to holding that agreements between the parties should be honored, we further
       hold that where there has been no advance agreement regarding the disposition of pre-
       embryos, “then the relative interests of the parties in using or not using the preembryos must
       be weighed.” Davis, 842 S.W.2d at 604. Although we acknowledge that this is not an ideal
       way to resolve a dispute implicating reproductive rights, we note that “what is even worse
       *** is to give a possibly antagonized ex-spouse the power to either block parentage or to
       name the price that potential parentage will cost.” Strasser, supra, at 1225. We note that
       under a balancing approach:
            “Ordinarily, the party wishing to avoid procreation should prevail, assuming that the
            other party has a reasonable possibility of achieving parenthood by means other than use
            of the preembryos in question. If no other reasonable alternatives exist, then the argument
            in favor of using the preembryos to achieve pregnancy should be considered. However,
            if the party seeking control of the preembryos intends merely to donate them to another
            couple, the objecting party obviously has the greater interest and should prevail.” Davis,
            842 S.W.2d at 604.
       In reaching these holdings, we have considered appellant’s arguments against the contractual
       and balancing approaches and find them to be without merit.
¶ 43        Appellant argues that “a contract to create and use pre-embryos is the same as a contract
       to engage in sexual intercourse,” and thus void ab initio. He also argues that Illinois public
       policy requires the couples’ consent for any use of the pre-embryos “at the time of the
       proposed use.” We disagree. There is simply no credible basis to find that the process of in
       vitro fertilization is the equivalent of two persons engaging in sexual intercourse, and


                                                -14-
       appellant fails to cite any clear public policy against contracts for the right to use pre-
       embryos created with one party’s sperm and another party’s eggs. In fact, we find that,
       contrary to his claim, Illinois public policy would seem to favor such contracts given that the
       Illinois legislature has specifically provided for contracts in surrogacy situations and set forth
       the requirements thereof. 750 ILCS 47/25 (West 2010).
¶ 44        Appellant further argues that “his constitutional right not to be a parent means his consent
       is required for any use of the pre-embryos at the time of their use.” In making this argument,
       appellant cites federal abortion case law and claims that “the right to an abortion is a
       semantic recasting of the right not to be a parent.” However, he claims that
            “unlike in the abortion context, in the context of cryopreserved pre-embryos the man and
            woman are in equal positions. And with this equality of positions comes the equality of
            the respective constitutional rights of a woman and man to control the use of the pre-
            embryos. As a result, the constitutional right not to be a parent means the consent of both
            the woman and the man is required for any use of the pre-embryos.”
       In other words, appellant has essentially derived a right for him to unilaterally prohibit the
       use of a pre-embryo created with his sperm and appellee’s egg, without regard to appellee’s
       interests in the pre-embryo, from the fact that a woman has a constitutional right to terminate
       her pregnancy. This arguments is without basis. We note that individuals may waive their
       constitutional rights, whether by contract or otherwise (see In re Estate of Ferguson, 313 Ill.
       App. 3d 931, 937 (2000)), and that the right to terminate a pregnancy, itself, is subject to a
       balancing of the interests involved. For instance, in Planned Parenthood of Central Missouri
       v. Danforth, 428 U.S. 52, 71 (1976), the Supreme Court noted:
            “The obvious fact is that when the wife and the husband disagree on [the decision to
            terminate a pregnancy], the view of only one of the two marriage partners can prevail.
            Inasmuch as it is the woman who physically bears the child and who is the more directly
            and immediately affected by the pregnancy, as between the two, the balance weighs in
            her favor.”
       Similarly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846
       (1992), the Supreme Court addressed the interests of the State with respect to termination of
       a pregnancy:
                “It must be stated at the outset and with clarity that Roe’s essential holding, the
            holding we reaffirm, has three parts. First is a recognition of the right of the woman to
            choose to have an abortion before viability and to obtain it without undue interference
            from the State. Before viability, the State’s interests are not strong enough to support a
            prohibition of abortion or the imposition of a substantial obstacle to the woman’s
            effective right to elect the procedure. Second is a confirmation of the State’s power to
            restrict abortions after fetal viability, if the law contains exceptions for pregnancies
            which endanger the woman’s life or health. And third is the principle that the State has
            legitimate interests from the outset of the pregnancy in protecting the health of the
            woman and the life of the fetus that may become a child.”
       We thus find no constitutional obstacle to honoring an agreement regarding the disposition
       of pre-embryos, and where there has been no advance agreement regarding the disposition

                                                 -15-
       of pre-embryos, then to balance the parties’ interests in the event of a dispute.
¶ 45       Appellant lastly argues that the Illinois Constitution requires the parties’ consent to the
       use of pre-embryos at the time of their use, relying on the same arguments raised in support
       of his federal constitutional claim, but with the added assertion that “the right of privacy
       under the Illinois Constitution is broader than its federal counterpart.” Appellant refers to the
       following legislative history in support of his claim that the broader Illinois right to privacy
       requires contemporaneous consent to use of the pre-embryos:
               “The delegates considered an amendment from the floor that would have stricken the
           privacy clause from article I, section 6. During the debate on this amendment, the
           chairman of the Bill of Rights Committee commented:
                   ***
           The chairman offered the example of devices that could ‘penetrate walls and can view
           what’s going on’ inside a person’s home, revealing ‘bedtime intimacies and private
           conversations,’ as the kind of unreasonable invasion of privacy that should be prohibited.
           [Citation.] The amendment failed and the privacy clause became a part of our state
           constitution.” People v. Caballes, 221 Ill. 2d 282, 318-19 (2006).
       Although appellant claims that “[t]he technological advances that make IVF and
       cryopreservation possible constitute the ‘additional or more effective means by which
       privacy can be invaded,’ ” and that “the decision whether to be a parent constitutes the most
       basic and fundamental of bedroom intimacies,” he does not explain why the Illinois right to
       privacy would preclude this court from honoring a contract governing the disposition of pre-
       embryos or in the absence of a contract balancing the interests of the parties in the event of
       a dispute over their use. We therefore find this argument unpersuasive and turn to whether
       the parties previously agreed on a disposition of the pre-embryos.

¶ 46                  D. The Informed Consent and the Co-Parent Agreement
¶ 47        In this case, appellant maintains that the informed consent executed by the parties is a
       valid contract which prevents use of the pre-embryos without his consent. Specifically, he
       claims that the informed consent is an expression of both his and appellee’s intent that the
       pre-embryos cannot be used without both of their consents.
¶ 48        Appellee claims that appellant has misinterpreted the informed consent and argues that
       it is “simply the document by which the hospital sets forth its own policies regarding the
       control of pre-embryos.” (Emphasis in original.) She also counters that appellant agreed to
       the subsequently written co-parent agreement where he promised that he would sign it, then
       performed his one critical obligation by providing sperm to create the pre-embryos.
¶ 49        Appellant replies that he never promised to sign the co-parent agreement and never
       agreed to its terms. He also claims that he did not perform under the co-parent agreement
       because he told appellee that “we needed to discuss it,” and he was “simply honoring the
       prior commitment he had made on March 25.”
¶ 50        Being a case of first impression, the circuit court did an admirable job of considering the
       alternative approaches taken by other states’ courts in addressing the issue of how to
       determine the disposition of cryopreserved pre-embryos created with one party’s sperm and

                                                 -16-
       another party’s ova. Obviously, the parties did not know which approach the circuit court
       would adopt prior to the circuit court applying the balancing approach and entering summary
       judgment in favor of the appellee. As we have explained, the proper test to apply is the
       contractual approach. Consequently, we vacate the entry of summary judgment in favor of
       the appellee. As the parties were unable to present evidence in support of their respective
       positions in light of the contractual approach, we remand this matter to the circuit court to
       apply the contractual approach to any facts previously adduced and to any facts the parties
       wish to present on remand. This court retains jurisdiction over this matter and we instruct the
       circuit court and the parties to conclude any additional litigation they deem necessary within
       180 days of this court issuing our mandate.

¶ 51      Reversed and remanded with instructions.




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