S J Chapman, Resident Blogger, (’12, Northwestern University Law School)
Karla and Jacob dated 5 months before she was diagnosed with lymphoma. Since cancer treatment would render Karla infertile, Jacob provided his sperm for a hospital to develop embryos and cryogenically store them until a later date. Two months later, he dumped her (via text message). Now, three years later and cancer-free, the couple is in “limbryo” as a court determines whether to grant Jacob’s injunction against Karla implanting the embryos.
Szafranski v. Dunston illustrates just how far procreation has been separated from parenting – and we’ve only seen the tip of the iceberg. The first human created through IVF in the US was born in 1981. Since then, surrogacy and the purchase or donation of biological material has resulted in the birth of 5 million babies conceived using ART. Parenting via contract isn’t a new phenomenon – we’ve been doing it as long as adoption has been in existence. Procreating by contract is.
But when contracts fail, potential procreators have the constitution on their side. And there is nothing up to this point showing that Szafranski or Dunston had a contract. Szafranski’s essential argument in the case is that Dunston is violating his constitutional rights, asserting constitutional notions of privacy. Dunston has potential contract-based arguments in estoppel or performance, but her essential stance has been that her constitutional right to become a parent trumps his constitutional right not to. Can’t the court see that this is just Roe in reverse?
As we move towards a more artificial era of child conception, its important to take a stance on whether genetic material is used against our will. Unless there is a contract in place, there should be contemporaneous mutual consent to the use of embryos. Just think how Dunston would feel if Szafranski wanted to implant an embryo into his wife? I have a feeling she’d be singing a different constitutional tune.