A Man’s Right to Choose vs. Court-Ordered Fatherhood

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Karla Dunston and Jacob Szafranski's legal battle over unused frozen “pre-embryos” sheds light on the not-so-talked about man's right to choose.
Karla Dunston and Jacob Szafranski’s legal battle over unused frozen “pre-embryos” sheds light on the not-so-talked about man’s right to choose.

In 2013, we observed the 40th anniversary of the Roe v. Wade Supreme Court decision that recognized that a woman has the right to terminate a pregnancy. There is a case making its way through the courts in Illinois that may refine the idea of the right to choose — specifically, a man’s right to choose not to be a father.

Karla Dunston and Jacob Szafranski are in a legal battle over frozen “pre-embryos” that they produced together. When Dunston had to undergo chemotherapy at the age of 38 (which would leave her infertile), she asked her boyfriend of a few months Szafranski to help her. Doctors used his sperm to fertilize some of her eggs, and the result was frozen for later use.

A few years later, Dunston had yet to use the pre-embryos. Szafranski brought a suit to prevent her from doing so, and she counter-sued. The court awarded her sole custody. An appellate court handed the case back to the first court with new guidelines. The trial court had held that her last chance at having a baby outweighed his right not to be a dad. This time, it was instructed to follow contract law. The lower court again found for Dunston, and Szafranski is appealing that decision.

Now, how the lower court decided to award Dunston the pre-embryos under contract law is unclear to me. What I do know is that at the clinic before the ova were fertilized, the two signed an informed consent agreement. In that agreement were the words, “No use can be made of these embryos without the consent of both partners (if applicable).” Perhaps this is unenforceable under Illinois law or perhaps there are other contractual facts in the case that would override that; however, this case isn’t going to end until it gets to the state Supreme Court, which sidestepped it the first time around.

Now, in most reproductive rights cases, I figure it is up to the woman in question as to what happens. After all, what happens is happening inside her. If you don’t control your own body, is there any sense in which you are really free? So I am a firmly in the pro-choice camp. What the father of the fetus wants must take second place to what the mother carrying the fetus wants. And there are a lot of men out there who are fathers only because the woman involved chose not to terminate the pregnancy. The situation is unequal. A man’s right to choose ends when the ova is fertilized. A woman has a few extra months to decide. And she decides for the both of them.

But this isn’t most reproductive rights cases. Right now, nothing is inside of Dunston. She claims that these pre-embryos are her only chance to have a biological child of her own. She states she wants no money from Szafranski. For his part, he doesn’t want to have a child right now. And their relationship ended almost right after the clinic visit. A child would create a situation where he must either not participate in the life of his child or put up with Dunston — and their relationship is such that they are suing each other. Fatherhood with her would suck. In either case, it is unpalatable.

If I were sitting on the bench here (and I thank the God I don’t believe in everyday that I didn’t become a lawyer), I’d probably find for Szafranski. There’s a contract in place that both parties signed, and it’s a dicey matter to say that contract is unenforceable because of a public policy need. I think it’s pretty easy to argue that Szafranski would not have gone ahead with the procedure if he didn’t have a veto over the use of the pre-embryos.

What Dunston, who is a doctor by the way, should have done is simply frozen her ova unfertilized. Hindsight, of course, is 20/20, and if I had been told I needed to start chemo right away, I am pretty sure my reasoning and judgment would suffer. So the fact that she did what she did is understandable — it might even be laudable. I don’t think her desire to have a child weighs all that heavily so long as there are kids in orphanages. “It’s different when it’s your own” is the answer. As a stepfather of two and a father of one, let me respond as succinctly as I can: Bullshit. If that’s how you are, you shouldn’t be a parent in any case.

Moreover, she could make history now by being the first person cloned — with a story like this behind her, I am certain she could find someone to do it. We know how to clone humans; no one has done it yet.

Maybe, Szafranski is being a vindictive ass. Maybe he’s just so pissed off with her and the way the relationship went that he is trying to cause her as much misery as he can. If that were illegal, we’d need thousands more prisons for both males and females.

“To say one person deserves [the pre-embryos] more than the other, I don’t think that’s right,” Szafranski told the Huffington Post. “I’m in no position to force her to use [the pre-embryos] if she didn’t want to. I don’t think the law should be able to do that to me.”

Well, we’re going to find out if the law can.

Jeff Myhre is a contributing journalist for TheBlot Magazine

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