The New Yorker
Karla Dunston had been dating Jacob Szafranski for about five months when she received troubling news: she had non-Hodgkin’s lymphoma. An oncologist told her that the chemotherapy was likely to make her infertile, so Dunston, an emergency-medicine doctor, decided to delay it for enough time to take precautions. She called Szafranski, a nurse, paramedic, and firefighter, and asked if he would provide sperm so that she could freeze embryos for possible future use. He agreed, and the next day they went to a lab at Northwestern University to sign an informed-consent form and begin the procedure. About ten days later, Dunston’s eggs were harvested. But she didn’t produce very many: only eight. While the original plan had been to fertilize half and freeze the other half, the doctor argued that this would be risky. “Fertilize all eight,” Szafranski said. They did, and Dunston began chemotherapy the following day.
The fate of these frozen pre-embryos (the technical term for an embryo that has not yet been implanted) is currently the subject of a lawsuit that has been going on in Chicago for almost four years. In May, 2010, while Dunston was undergoing her second round of chemotherapy, she and Szafranski broke up. On August 22, 2011, after more than a year of e-mail correspondence about what would happen to the pre-embryos, Szafranski filed a complaint enjoining her against using them. The case is currently under appeal, with a decision imminent. It could go to the Illinois Supreme Court.
The case focusses on what kind of contract existed between Dunston and Szafranski, and to what extent that matters. Was the boilerplate form that they signed with Northwestern a contract? Or did they have an oral contract, represented by the seven-minute phone conversation that they had about their decision, with Dunston calling from home and Szafranski speaking on a cell phone in his workplace bathroom? What about a draft contract written up by a lawyer about the embryo disposition, which was never signed?
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