(309) 788-2800 mcfe@mcfe-law.com

In June last year, an Illinois court considered whether a man’s sperm could be used without his consent to procreate. McCarthy, Callas and Feeney previously blogged about the case in the fall. In that case, Karla and Jacob dated briefly, shortly before Karla was diagnosed with non-Hodgkin’s lymphoma. Karla was concerned that she would not be able to have children after she started the chemotherapy involved with treatment. She asked Jacob, her boyfriend at the time, to donate sperm so that they could combine with them her eggs to create frozen embryos. Jacob agreed. However, the relationship ended just two months after the couple’s visit to the clinic.

When Karla wanted to use the frozen embryos, Jacob disagreed. He argued that he was being forced to become a parent against his wishes, and it violated his decision not to procreate. When Karla and Jacob arranged to have the embryos frozen, both signed an agreement that neither one could use the embryos without the consent of the other party. However, they also visited an attorney where they created a “co-parent agreement” that stated that both parties “agree[] to undertake all legal, custodial, and other obligations to the Child regardless of any change of circumstances between the parties.” But, the parties did not actually sign the agreement. Jacob explained that he was having reservations about the arrangement at that time.

The Appellate Court of Illinois, First District, Second Division, remanded that case to find more facts. The appellate court determined that the party’s agreements that were actually signed should be the main consideration in this case, thereby reversing the lower court’s decision in granting Karla custody of the embryos. The appellate court noted the importance of contract in these situations, and not just who had the superior right in the interest of the embryos.

In May 2014, the lower court came back with a decision in favor of Karla again. The lower court judge determined that Karla’s desire to procreate overrode Jacob’s privacy interest in not procreating. The judge noted Karla’s unique circumstances, explaining “Karla’s desire to have a biological child in the face of impossibility of having one without using the embryos outweighs Jacob’s privacy concerns, which are now moot, and his speculative concern that he might not find love with a woman because he unhesitatingly agreed to help give Karla her last opportunity to fulfill her wish to have a biological child.” As Karla’s attorneys pointed out, this finding may set the stage for other women who are in the same situation as Karla. These women may not be able to have biological children any other way. Nonetheless, the ruling seems to brush aside Jacob’s desire not to have children.

Karla noted that she is not seeking any support from Jacob, financial or otherwise. Jacob will appeal again, and Karla cannot implant the embryos until all appeals have been resolved. McCarthy, Callas & Feeney will continue to observe this case as it moves forward. Its resolution will be important to those who wish to use assisted reproduction in the future. If you need advice relating to your rights in assisted reproduction, please contact McCarthy, Callas & Feeney at 309-788-2800.

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