More on forced paternity

I mentioned an Illinois case of forced paternity via IVF. Robert Franklin attacks the decision here and http://www.nationalparentsorganization.org/blog/22450-szafranski-part-two-a-court-ruling-in-search-of-law-to-support-it.

The whole IVF (ie, ART, test tube baby) industry is based on consenting adults signing binding contracts regarding the creation and disposition of zygotes. This decision says that a judge can override those written contract based on his perceptions of pre-contract intentions and post-contract needs.

This is just another example of judges choosing to micro-manage people's lives in the most far-reaching ways.

Here is a news account:

Jacob Szafranski will ask the Illinois Supreme Court to overturn their landmark decision granting his ex-girlfriend Karla Dunston custody of their frozen embryos. Dunston, 43, of Chicago, froze the three embryos five years ago, and an Illinois appellate court awarded her custody Friday despite objections from Szafranski, 33, who says the decision amounts to forced procreation.

Dunston, a physician, was diagnosed with lymphoma in 2010. Worried that chemotherapy would make her infertile, she asked Szafranski, with whom she'd just begun a relationship, to donate his sperm to create the embryos. Their conversation took place on the phone, and he agreed, Dunston testified. Both signed an informed consent form with a fertility lab before Dunston's eggs were harvested. They broke up months later, and Szafranski changed his mind about the frozen embryos.

"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.

Dunston, whose cancer is now in remission, doesn't want money or support from Szafranski, her attorney told WMAQ. But the three embryos represent what her attorney, Abram Moore, said is her "last chance to have children that share her genetic material."

She is a 43-year-old physician. Cancer or no cancer, she had to know that the optimal time for having babies was about 20 years ago.

She also had to know that a relationship from a casual phone call to a man 10 years younger was not going anywhere. If she wanted a sperm donor, then I am sure she knows how to get one. They are not that expensive.

Update: A reader points out a similar California case, in the news today:

Stephen Findley and Mimi Lee were quite a couple. He was a Harvard-educated executive at a Bay Area global wealth management firm, worth millions. She studied piano at Julliard, earned degrees from Harvard and became a doctor specializing in neuroscience.

But on the eve of their September 2010 wedding, Lee was diagnosed with cancer, casting a cloud over their dreams of having children. With aggressive treatment expected to render Lee infertile, the couple rushed to UCSF's fertility center, where five of Lee's embryos -- fertilized by Findley -- were cryogenically frozen and preserved for a possible future with offspring.

Now, the couple is in the midst of a bitter divorce -- and those embryos, still stored at UCSF, are at the heart of an unprecedented legal battle that could determine how California deals with such conflicts as fertility technology becomes an increasingly common part of everyday life.

The drama is expected to unfold this week in San Francisco Superior Court, where a judge is conducting a trial set to begin Monday that pits Findley's wish to have the embryos destroyed against Lee's quest to preserve them as her only way to bear a child.

I heard this on the radio this morning, but I assumed that it was another similar case, the Sofía Vergara Nick Loeb case, on which I commented before.

If the moms-to-be win any of these cases, it will complicate the work of the IVF clinics, because then they can no longer rely on the written contracts for authority over the zygotes. I suppose every zygote could get a guardian ad litem to get a court order for whose custody would be in the BIOTCh, possibly after a psychological evaluation.

Okay, I am exaggerating a little bit, but legal uncertainty can screw up the industry. I understand that it is nearly impossible to get a sperm donor in England, because laws have retroactively abolished anonymity.

A comment says:

Legally he would be obligated to pay support for the children even if she signs an agreement not to seek support. The right to support belongs to the children, not her. She can't waive their rights, because the future is unpredictable and no one knows what their future needs might be. If she dies or becomes incapacitated or ends up on welfare, he can be compelled to pay support. If any of the children are disabled or need special and highly expensive care, he can be made to contribute. So what he has going isn't just revenge. It is the potential liability for years of support.

That is true, except that it may be possible, in a separation action, to convince a judge that the man is effectively just a sperm donor, and terminate his parental rights and responsibilities. But there is no guarantee that the judge will do it, and he may say that having a legal father is in the BIOTCh.