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Is it a father's prerogative or his right to change his mind? p3

We are circling back to the case we were talking about in our Sept. 4 post. While the dispute is in Illinois, the situation is one that could easily happen here in Minnesota. An unmarried couple agreed to prepare for in vitro fertilization when the woman learned her cancer treatment would render her infertile. The procedure resulted in several pre-embryos (fertilized eggs ready to be implanted). After the couple broke up, the man decided he did not want to be the biological father of any children that could come from those pre-embryos. He asked the court to bar the woman from using them.

The trial court dismissed the matter, allowing the woman to control the pre-embryos because her interests outweighed the man's. The man appealed, and the appellate court sent the matter back to the trial court with instructions to apply a different legal rule. The appropriate rule, the panel said, first looked to any contract there might have been; if none were found, the personal interests of the parties would be considered.

The trial court found for the woman, and, again, the man appealed. The appellate court affirmed.

The woman argued that there was a contract -- an oral contract, but a contract nonetheless. The two had agreed that she could use the pre-embryos without the man's consent. That contract was not affected by the informed consent form they signed at the clinic.

The man argued that the informed consent form trumped the oral contract. Signed the day after the couple entered into the oral contract, the form included the following language: “No use can be made of these embryos without the consent of both partners (if applicable).” The court concluded that the form was not referring to the man's or woman's use of the pre-embryos. Rather, it was referring to the hospital's use of the pre-embryos, protecting the man and woman from the possibility that the hospital would use the pre-embryos for something that one of them found objectionable.

The trial court had also tackled the second part of the rule, the balancing of interests. The appellate court agreed that the woman's interests prevailed. If the woman wanted a child of her own, a child that she had a genetic link to, those pre-embryos were her only chance.

The next step could be an appeal to the state's Supreme Court. In the meantime, other states can look to this decision for guidance.

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

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