The June 12, 2015 second appeal in Dunston v. Szafranski addresses oral contracts, written contracts, and balancing the interests of the egg and sperm donors.
On March 24, 2010 Karla Dunston learned she would likely become infertile during chemotherapy. She called Jacob Szafranski, whom she started dating four months earlier. Jacob said he would provide sperm to make pre-embryos with her to help Karla have a child. The next day, Jacob and Karla signed a 21-page “Informed Consent for Assisted Reproduction” that covered many (but not all) areas. Jacob ended his relationship with Karla in May, and the fight about their three frozen pre-embryos began. Jacob sued to keep Karla from using the pre-embryos, while Karla sued for sole custody and control of them.
The appellate court affirmed the following findings of the trial court, which ruled in Karla’s favor:
– Jacob and Karla had an oral contract allowing Karla to use the pre-embryos without Jacob’s consent. Jacob conceded the parties had an oral contract but disagreed about the scope of their oral contract.
– The medical informed consent document that Jacob and Karla signed did not modify or contradict their oral contract. Thus Karla could use the pre-embryos without limitation when they formed the oral contract.
– Karla’s interests outweighed over Jacob’s interests. In this balancing test, the pre-embryos are Karla’s last (and only) opportunity to have a biological child with her own eggs. Karla’s interests outweighed Jacob’s privacy concerns.
Dunston represents the importance, as I try to discuss with everyone I consult and represent, to cover every potential scenario and put it in writing. In many instances of family law negotiations and litigation, one or both parties do not want to address a topic in writing because they believe they agreed on it, or think they will work it out in the future. While I hope all of those people do work out the unwritten details, sometimes they do not. Those people then complain that the other side did not live up to the oral agreement, but they could have covered it in writing earlier.
The ultimate disposition of embryos is extremely important. Jacob and Karla should have addressed that in writing before starting the medical procedures.