Wednesday, September 18, 2013

The Kids Are On Ice

Technology is outpacing the legal system. The problem for the legal system is that it must respond, and set precedent. It's the last thing the average judge wants to do.

The Illinois Supreme Court is going to hear a case brought by an unmarried couple who are squabbling over possession of their frozen offspring.

So right there you can imagine Judge Judy giving those two an earful for playing house and then coming to the court to solve their problems when there are no laws on the books that can help them.

The case at hand boils down to a child custody issue, except the child isn't born yet. Or even in utero. It's sitting in a tank of liquid nitrogen in a lab, on hold.

If the baby-to-be is defrosted and implanted, and then becomes a live child, the former boyfried becomes a father but he doesn't want to be a father any more. Even though the mom-in-waiting says she won't sue for child support, that baby would link the couple together forever. What if the future mom expects future dad to be involved in baby's life when he wants nothing to do with fatherhood? No surprise that he doesn't want his ex to gain custody of the frozen embryos, out of concern that he won't just be some anonymous sperm donor.

Karla Dunston put off having children until her career was set, but when she was diagnosed with non-Hodgkins lymphoma she knew that her fertility was about to disappear in a blast of chemotherapy. She had a boyfriend who wanted to support her emotionally. She knew she could freeze embryos now, undergo chemo, recover from her disease and then have a baby, so it made sense to head to the fertility clinic. Modern science was providing her with a means to achieve her dream of motherhood, in spite of illness.

All well and good, until the relationship soured and Jacob Szafranski didn't want to father a child with her any longer. They weren't together. What was the point?

The point is, Ms. Dunston wants to have a baby and she wants those frozen embryos. Mr. Szafranski claims that allowing the embryos to be implanted is a violation of his rights. It's like he's being forced into fatherhood when he doesn't want to be a father.

The right-to-life crowd will take the side of the frozen embryos and demand that they have legal representation so their chilled voices can be heard. There will be those who insist that the woman has the right to an abortion so she has a right to motherhood as well, if that's her choice. Men's rights groups will scream loudly about making a guy pay for something he didn't sign up for.

Except, you see, Mr. Szafranski did.

It's not as if the folks at the fertility clinic raped him to collect his sperm. He was a willing participant at the time.

What technology has granted him is an opportunity to entertain second thoughts, and his second thoughts have come after the affair ended. There are plenty of men out there who have second thoughts at the same period in the relationship, but the girl is already pregnant and it's too late to turn back. Right now, Ms. Dunston isn't pregnant. Technology allowed her to postpone the normal course of pregnancy.

But there are still three frozen embryos in that cryogenic tank at Northwestern Memorial Hospital.

Will the judges decide that once the first step is taken, you're in it for the rest of the journey? Or can they issue a decree granting Ms. Dunston's wishes but turning Mr. Szafranski into an anonymous sperm donor, free and clear of all responsibility to his potential offspring? And how can they make their decree binding when all it takes is a phone call from Ms. Dunston to some future Mrs. Szafranski to suggest they get the kids together so the Dunston baby can meet its half-siblings?

Technology runs at a rapid pace while the law plods along on a rutted path. The Illinois Supreme Court judges have a difficult case before them, which means their political clout has a difficult case to influence. Has Mr. Szafranski considered a hefty political donation to Alderman Ed Burke to sway the judges towards his way of thinking? You know, the one whose wife is a Supreme Court judge.

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