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Is it a father's prerogative or his right to change his mind? p2

We are discussing a case in Illinois that broaches a fathers' rights issue that is distinctly outside the norm. The fathers' rights movement has focused on a father's right to be an active force in his child's life. For that to happen, the courts would have to modify their traditional approach to child custody, visitation and child support. A mother is not always the better custodial parent. A father is not always the provider, the weekend dad, or, worse, the deadbeat dad.

This case, however, looks at a man's wish not to be a father. Granted, the circumstances are unusual: The dispute here is over pre-embryos. Still, courts in more than one state have had to come to grips with a man's right to choose not to be a father at some point in the future, even after he has agreed to be..

As we said in our last post, the parties here are a woman who was stricken with cancer and her one-time boyfriend. Because the treatments would render her infertile, he agreed to proceed with in vitro fertilization. After some complications, the procedure resulted in fertilized eggs only. If this woman wanted to have a genetically related child, the only way to do it was with the pre-embryos created with her boyfriend's sperm.

They broke up, and soon he changed his mind. He petitioned the court to keep the woman from using those pre-embryos. He did not want to live with the possibility that he could become a father and not have access to the child or not even know that the child existed.

The trial court decided for the woman. Her interests, the court reasoned, trumped his. He appealed, and the appellate court reversed the lower court's decision. The lower court had not applied the correct legal rule in its decision, the appellate panel said, and the case went back to trial with directions that the court apply the rule articulated by the appellate panel.

The appeals panel had combed through existing caselaw in Illinois and other states to figure out how a court should approach a matter like this. First, the trial court should look for any agreements that the parties had entered into before the in vitro procedure. Then, if there were no agreement, the court would weigh the parties' interests in using or not using the pre-embryos.

So there was a second trial, and the court answered a different question: Did they have a contract?

We'll continue this in our next post.

Source: Szafranski v. Dunston, 2015 IL App (1st) 122975-B, 34 N.E.3d 1132, via WestlawNext

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