SHE was diagnosed with lymphoma. Her treatment presented the risk of infertility. SHE and HE froze HER embryos. SHE and HE had entered into an oral contract. They had agreed to create pre-embryos that SHE could use to have a biological child in the future. A few months later, they broke up.

SHE was infertile after her cancer treatment. HER three frozen embryos were her only chance at having biological children. Before the embryos were implanted, HE sued to prevent HER from using them.

The trial court agreed they had an oral agreement. It had not been modified in any way. It had not been contradicted in any way.

HE argued that they had modified their original oral contract. The fertility clinic document stated that the embryos could not be used unless both parties were in agreement. HE said the fertility document modified their oral contract. The court did not agree with HIM. SHE was awarded custody of the pre-embryos.

The court also held that HER interests in having the opportunity to have a biological child outweighed HIS interests. The pre-embryos were HER only chance to have a biological child due to her diagnosis with lymphoma.

The trial court heard testimony from both of the parties. And from the physician. And from an adoption and reproductive technology lawyer. The lawyer had met with the parties prior to the procedure taking place.

The evidence also included the details of the parties’ communications. The ones leading up to the decision by HIM to donate his sperm. And, the details for the reasons SHE underwent the procedure. Including the fact that she was told by her doctor that she would not be able to have a biological child after chemotherapy.

HE appealed to the Appellate Court. They agreed with HER. HE appealed to the Supreme Court. The Supreme Court would not hear the case.

Bottom line is that there is a distinction between a contract and a consent.

Szafranski v. Dunston, 2015 IL App (1st) 122975-B.

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