How to navigate divorce with children with special needs
Ex-Girlfriend Awarded Frozen Embryos over Protests of Ex-Boyfriend
A recent case has followed an example set by a Maryland court, and brings renewed attention to the question of what should happen to frozen embryos where the creating couple has split. The most recent case involves a woman, Karla Dunston, and her then-boyfriend, Jacob Szafranski, who agreed to create and freeze embryos when Dunston was diagnosed with an advanced case of cancer. Dunston wanted children, but was informed that her eggs would be destroyed in the aggressive cancer treatments she would need to undergo to survive the cancer. The couple had consulted with a reproductive rights attorney prior to creating the embryos, but never signed the agreement the lawyer drafted regarding what would happen to the frozen embryos if the couple split. While Szafranski was initially in favor of having children with Dunston, he ended the relationship with a text message shortly after Dunston began cancer treatments, and sent an email stating that he did not want Dunston to use the frozen embryos to have a child. By this time, Dunston was unable to create different embryos using her own eggs.
When Dunston attempted to use the frozen embryos to conceive after her cancer treatments had successfully concluded, Szafranski intervened and sought their destruction. After Dunston was awarded the embryos in trial court, Szafranski appealed the decision. He argued that the creation of a genetic child should not happen against one of the parent’s will, and that the prospect that he might have a child in the world with another woman had already caused the end of one romantic relationship for him. Dunston had already agreed that Szafranski would not be obligated to contribute financially to the child’s upbringing. The court on appeal agreed with Dunston, reasoning that, in a balance of the parties’ interest, Dunston had a greater interest in being able to use the embryos for in-vitro fertilization treatments than did Szafranski in having them destroyed, since she would otherwise never be able to have children to whom she was genetically related. Dunston has had a child via a donated embryo since the legal battle initially began.
Maryland is one of the few states whose courts have issued a similar ruling. In 2013, a Maryland court heard a case between a divorced couple, Godlove Mbah and Honorine Anong, regarding embryos the couple had created and frozen while married. Before divorcing, the couple gave birth to a daughter based on a successful In-Vitro Fertilization treatment from the frozen embryos they’d created, but had a number of embryos left over. The majority of states had thus far agreed with the parent requesting that the embryos be destroyed. However, in a similar result to the recent Illinois case, the Maryland judge found that, in balancing the interests and stakes for each party, Anong’s desire to have a child held greater weight and import than Mbah’s interest in having the embryos destroyed. This creates a possible precedent for future Maryland courts to rule similarly, though the case was based largely on facts specific to the couple at hand.
The topic of custody of embryos is still a very untested area of law. If you’re facing a complex family law matter, and need help either drafting an agreement to protect you from future legal trouble, or in protecting your interests once a conflict has emerged, contact a knowledgeable Columbia MD Family Law Attorney at Coover Law Firm, LLC. For a $99 no-obligation initial consultation on your Maryland family law matter from Howard County and throughout central Maryland, call 410-995-1100.
Disclaimer: The information in this blog post is provided for general educational & informational purposes only. It is not intended to convey legal advice or serve as a substitute for legal counsel on any subject matter.
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