No reproductive rights for men

[RavenSky]

The term "apparently" in "apparently settled the new deal" is a bit... off. Szafranski was presented with a contract and refused to sign it. .

Kindly provide evidence that he "refused" to sign it. It is clear that by using that specific word, you are implying knowledge that he disagreed with the terms of the agreement. The mere fact that neither of them signed it does not in and of itself indicate that either of them was in disagreement on its terms.

If you have evidence that either party actively disagreed with the terms of the co-parenting agreement, kindly provide it.

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No, it is actually fairly black and white. They had a signed contract. They were negotiating a change to that contract but couldn't come to an agreement about the terms. That means that the original contract remains in force and there is not a new contract.

This is simply not correct in case law anywhere in the USA (or in the UK from what I've been reading. Canada may be different)

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And the whole crux of the matter rests upon the reason that the second agreement was unsigned. That is because he had conditions for his signing of it and those conditions were not met. Until those conditions are met, the unsigned agreement should not ever override the signed agreement.

What conditions were in the second agreement that were not met?

 

[Toni]

And I would again emphasize that it is the Plaintiff insisting he had the right to change his mind regardless which agreement anyone found valid. Do you agree that he had the right to change his mind right up to the point of implantation?

He has a right to change his mind up until the point that a new agreement which doesn't require his consent is finalized and signed. If you're in a salary negotiation with your company and they want you to take a 10% pay cut in exchange for other benefits and you're negotiating back and forth about what those benefits will be and you and your company can't come to an agreement, does that mean that you therefore agreed to the 10% cut without any corresponding benefits or does it mean that your old employment contract is still in effect and it hasn't been replaced by a new one? I think the latter.

I think your example is not analogous.

If you're in a salary negotiation with your company and they want you to take a 10% pay cut in exchange for other benefits and the mediator draws up a new employment contract based on what both parties have said they wanted. In the meantime your company cuts your salary by 10% and increase your benefits in accordance with the new unsigned employment contract, and you continue working under those new terms for the next year without objection - do you think either you or your company could then claim there was no agreement beyond the original employment contract?

In any case, that was not my question. I asked if any of you think that the man should have been allowed to change his mind up to the point of implantation regardless of any contract - oral, written, signed or unsigned? That is his actual argument, and the position of a few states. Do you agree with his position?

I don't see it as a bright line/one size fits all kind of thing.

IF she had other options for having biological offspring, I would probably agree with him. But not only do those embryos represent her ONLY opportunity for having biological offspring, they both KNEW that from the beginning, and in fact, the time frame/last chance was what drove this entire situation. He knew that a)he had doubts but he did not share those doubts with her b)by with holding his doubts, he (mis)led her to believe that he was committed to her implanting those embryos at a future date. By his misleading her, he precluded any opportunity in the future to ever harvest other viable eggs and create embryos with donor sperm or with sperm from someone less conflicted.

It may not have been his intention to mislead her. He probably was attempting to be supportive. But he wasn't honest, based on his own account that he always had doubts.

Because his deception--intentional or not, good hearted or not, eliminated any other opportunity for her to have biological offspring, then yes, I think he has a moral and ethical and probably legal obligation to not prevent her from using the embryos. I think a case could be made that by withholding his doubts from her, he entered the contract fraudulently and therefore the signed contract requiring his consent is void. At the same time, I think she has a moral and ethical obligation to make good on her promise not to seek any support from him, now or in the future. This means she should have documents in place which provide for her other child and any future children without any support from their respective sperm donors.



This is not very different, IMO, than if he had been an anonymous sperm donor who agreed to allow his sperm to be used to create embryos for some other person and then decided, after the embryos were created, that he just didn't want to have the prospect of bio children out there somewhere. Same thing for an egg donor: if she agrees to donate eggs for the express purpose of creating embryos which will be implanted and hopefully result in a child, she should not be able to recall her consent after the embryos are created. In either case, I think the progenitor would have a valid ethical position if they did not want the embryos to be used for other purposes (research, for example. BTW, I am in favor of stem cell research).

 

[RavenSky]

No. The crux of the matter is whether there were verbal agreements which supersede the written and signed agreement. That unsigned agreement never had the condition that the hospital destroy his records. That was a verbal condition he attached to consent in a verbal exchange. Apparently there was more than one verbal agreement.

Ya ... kind of exactly. That means it's unclear exactly what it is that they agreed to verbally. When you have a situation like that, what you have is an ongoing negotiation. You don't just pick one of those from the middle and declare it the final agreement. What you do is hammer out any disagreements between the potential changes being made and then sign a new contract with the changes.

And when they still can't come to an agreement, they go to court - which is what they did, and the courts ruled in her favor.

 

[RavenSky]

Yes, he should be able to change his mind up until the point of implantation. That's what consent means. It's no different than a woman being able to withdraw her consent to sex at any point in the evening, regardless of whether or not the man had already paid for the lobster. It doesn't matter what agreements or promises she had made with the man, she can at any point and for any reason say "You can't stick your penis into me" and at that point he is no longer allowed to stick his penis into her.

If that is your position, then you agree with several states, but not Illinois where this case was heard. Here is what the Illinois Appellate Court wrote regarding the "contemporaneous mutual consent approach":

Mark P. Strasser, You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce, 57 Buff. L. Rev. 1159, 1210 (2009). He notes: “For example, the court said that the party opposing destruction of the embryos would bear the costs of their cryopreservation. Someone who wanted to get back at an ex-spouse might well say that he or she had no interest in cryopreserving the embryos, thereby shifting the costs to his or her ex-spouse. Further, one could imagine such a person imposing continuing psychic damage by hinting that he or she might consent to
the ex-spouse’s use of the embryos sometime in the future–the ex-spouse might well continue to be on an emotional rollercoaster when considering the possibility of finally becoming a parent. Or the embryos might in effect be held hostage–they would be released for use only if the ex-spouse were willing to give up something valuable in return, for example, in a property settlement or in exchange for more favorable support terms.” Strasser, supra, at 1210.

In this regard, the contemporaneous mutual consent model “give each progenitor a powerful bargaining chip at a time when individuals might very well be tempted to punish their soon-to-be ex-spouses,” “[which] makes no sense and may invite individuals to hold hostage their ex-partner’s ability to parent a biologically related child in order to punish or to gain other advantages.” Strasser, supra, at 1225.

Appellant argues that “a contract to create and use pre-embryos is the same as a contract to engage in sexual intercourse,” and thus void ab initio. He also argues that Illinois public policy requires the couples’ consent for any use of the pre-embryos “at the time of the proposed use.” We disagree. There is simply no credible basis to find that the process of in vitro fertilization is the equivalent of two persons engaging in sexual intercourse, and Appellant argues that “a contract to create and use pre-embryos is the same as a contract to engage in sexual intercourse,” and thus void ab initio. He also argues that Illinois public policy requires the couples’ consent for any use of the pre-embryos “at the time of the proposed use.” We disagree. There is simply no credible basis to find that the process of in vitro fertilization is the equivalent of two persons engaging in sexual intercourse, and appellant fails to cite any clear public policy against contracts for the right to use pre-embryos created with one party’s sperm and another party’s eggs. In fact, we find that, contrary to his claim, Illinois public policy would seem to favor such contracts given that the Illinois legislature has specifically provided for contracts in surrogacy situations and set forth the requirements thereof. 750 ILCS 47/25 (West 2010).

Similarly, these two had an agreement requiring consent of both parties for implantation. That means that consent can be withdrawn at any point prior to implantation, regardless of what had been done or paid for up until that point. It doesn't matter what other factors are in play, he can at any point and for any reason say "You can't stick this embryo into you" and at that point she is no longer allowed to stick that embryo into her. That's what consent means.

Except that the entire point of this case is that they did not have any such agreement. She has consistently maintained that they did have an agreement in the co-parenting contract even though it was unsigned. He has argued that there was no agreement in the co-parenting agreement he helped draft, but even if there was he shouldn't be bound to it because "void ab initio", but if that doesn't work then he wants to ignore everything he said and did and wrote in texts and emails all the way back to an "Informed Consent" statement. According to one article, one of his texts saying he “wanted to help her have a baby.”

Very well... the court didn't bind either of them to any of the conflicting agreements and proceeded as if there was no agreement - which there clearly wasn't since neither party agrees on which agreement they agreed to

I also think it is important to remember that HE filed this lawsuit, not her. This was not a case of her filing suit to break a contract - it was HIM filing suit to break a contract.

 

[Tom Sawyer]

No. The crux of the matter is whether there were verbal agreements which supersede the written and signed agreement. That unsigned agreement never had the condition that the hospital destroy his records. That was a verbal condition he attached to consent in a verbal exchange. Apparently there was more than one verbal agreement.

Ya ... kind of exactly. That means it's unclear exactly what it is that they agreed to verbally. When you have a situation like that, what you have is an ongoing negotiation. You don't just pick one of those from the middle and declare it the final agreement. What you do is hammer out any disagreements between the potential changes being made and then sign a new contract with the changes.

And when they still can't come to an agreement, they go to court - which is what they did, and the courts ruled in her favor.

Right, and that was a wrong decision from the court because it was in direct violation of their signed contract. That contract explicitly specified what happens in the event that they can't come to an agreement, which is that the embryo doesn't get used. What the court should have done is recognize that they had encountered a situation which had a resolution defined within the contract and enforced the terms of the contract. Full stop.

 

[RavenSky]

I don't see it as a bright line/one size fits all kind of thing.

IF she had other options for having biological offspring, I would probably agree with him. But not only do those embryos represent her ONLY opportunity for having biological offspring, they both KNEW that from the beginning, and in fact, the time frame/last chance was what drove this entire situation. He knew that a)he had doubts but he did not share those doubts with her b)by with holding his doubts, he (mis)led her to believe that he was committed to her implanting those embryos at a future date. By his misleading her, he precluded any opportunity in the future to ever harvest other viable eggs and create embryos with donor sperm or with sperm from someone less conflicted.

I agree completely, and believe both Illinois courts did too, which is why they made the decisions they did.

It may not have been his intention to mislead her. He probably was attempting to be supportive. But he wasn't honest, based on his own account that he always had doubts.

Because his deception--intentional or not, good hearted or not, eliminated any other opportunity for her to have biological offspring, then yes, I think he has a moral and ethical and probably legal obligation to not prevent her from using the embryos. I think a case could be made that by withholding his doubts from her, he entered the contract fraudulently and therefore the signed contract requiring his consent is void. At the same time, I think she has a moral and ethical obligation to make good on her promise not to seek any support from him, now or in the future. This means she should have documents in place which provide for her other child and any future children without any support from their respective sperm donors.

Agree again.

This is not very different, IMO, than if he had been an anonymous sperm donor who agreed to allow his sperm to be used to create embryos for some other person and then decided, after the embryos were created, that he just didn't want to have the prospect of bio children out there somewhere. Same thing for an egg donor: if she agrees to donate eggs for the express purpose of creating embryos which will be implanted and hopefully result in a child, she should not be able to recall her consent after the embryos are created. In either case, I think the progenitor would have a valid ethical position if they did not want the embryos to be used for other purposes (research, for example. BTW, I am in favor of stem cell research).

This raises a very interesting point. I wonder what the donation consents say, and if they could be voided in states like Iowa that take the "contemporaneous mutual consent approach".

 

[RavenSky]

No. The crux of the matter is whether there were verbal agreements which supersede the written and signed agreement. That unsigned agreement never had the condition that the hospital destroy his records. That was a verbal condition he attached to consent in a verbal exchange. Apparently there was more than one verbal agreement.

Ya ... kind of exactly. That means it's unclear exactly what it is that they agreed to verbally. When you have a situation like that, what you have is an ongoing negotiation. You don't just pick one of those from the middle and declare it the final agreement. What you do is hammer out any disagreements between the potential changes being made and then sign a new contract with the changes.

And when they still can't come to an agreement, they go to court - which is what they did, and the courts ruled in her favor.

Right, and that was a wrong decision from the court because it was in direct violation of their signed contract. That contract explicitly specified what happens in the event that they can't come to an agreement, which is that the embryo doesn't get used. What the court should have done is recognize that they had encountered a situation which had a resolution defined within the contract and enforced the terms of the contract. Full stop.

It didn't explicitly state this. In fact, as far as has been disclosed in the court documents available, it was silent on this point. That is part of the problem with it. In other cases, the "Informed Consent" documents were, in fact, explicit regarding who decides if the two parties cannot agree.

Moreover, as the appellate court summarized:

Appellee claims that appellant has misinterpreted the informed consent and argues that it is “simply the document by which the hospital sets forth its own policies regarding the control of pre-embryos.” (Emphasis in original.)

Informed Consent statements are exactly that - disclosures from the medical facility to cover their own hind-ends. From the hospital's perspective, of course they need an agreement between the parties before the hospital can be induced to act. That doesn't not mean that the Informed Consent document itself is the agreement.

 

[Tom Sawyer]

It didn't explicitly state this. In fact, as far as has been disclosed in the court documents available, it was silent on this point. That is part of the problem with it. In other cases, the "Informed Consent" documents were, in fact, explicit regarding who decides if the two parties cannot agree.

What are you talking about? Is there a second definition of "requires consent of both parties" which doesn't mean this?

If something requires consent of both parties and one of them doesn't consent, you don't do that thing. Full stop. That's pretty much the entire definition of what requiring consent of both parties means.

How is it that you're defining that phrase so as to have it mean anything else?

 

[RavenSky]

It didn't explicitly state this. In fact, as far as has been disclosed in the court documents available, it was silent on this point. That is part of the problem with it. In other cases, the "Informed Consent" documents were, in fact, explicit regarding who decides if the two parties cannot agree.

What are you talking about? Is there a second definition of "requires consent of both parties" which doesn't mean this?

If something requires consent of both parties and one of them doesn't consent, you don't do that thing. Full stop. That's pretty much the entire definition of what requiring consent of both parties means.

How is it that you're defining that phrase so as to have it mean anything else?

Actually... NOT "full stop". The Informed Consent document said:

[n]o use can be made of these embryos without the consent of both partners (if applicable). *** In the event of divorce or dissolution of the marriage or partnership, NMFF [Northwestern Medical Faculty Foundation’s Division of Reproductive Endocrinology and Infertility] will abide by the terms of the court decree or settlement agreement regarding the ownership and/or other rights to the embryos.

and

The law regarding [in vitro fertilization], embryo cryopreservation, subsequent embryo thaw and use, and parent-child status of any resulting child(ren) is, or may be, unsettled in the state in which either the patient, spouse, partner, or any current or future donor lives, or in Illinois, the state in which the NMFF Program is located. NMFF does not provide legal advice, and you should not rely on NMFF to give you any legal advice. You should consider consulting with a lawyer who is experienced in the areas of reproductive law and embryo cryopreservation as well as the disposition of embryos, including any questions or concerns about the present or future status of your embryos, your individual or joint access to them, your individual or joint parental status as to any resulting child, or about any other aspect of this consent and agreement.

"If applicable" In other words, even the Informed Consent document makes it clear that it isn't any sort of binding agreement between the couple. The hospital is simply covering their own position. The hospital clearly expected Karla and Jacob to create an actual agreement between themselves, because it sent the couple to their own attorney even so far as sending them to the hospital's own attorney, Nidhi Desai, for further advice. That attorney provided them with two possibilities: a sperm donor agreement or a co-parent agreement. Four days later, they notified the attorney that they had opted for the co-parenting agreement. Four more days later, Jacob makes his deposit and at that time explicitly agreed to have his sperm fertilize all eight of her eggs.

He gave his consent to use his sperm on all eight eggs knowing that by doing so she would have zero chance of having any of her eggs fertilized by an anonymous donor. He gave his consent to use his sperm on all eight eggs knowing that she fully intended to use the embryos to have a child - this was never ever in question. He gave his consent to use his sperm on all eight eggs knowing that he'd had the option of using a "sperm donor" agreement, but opted for the "co-parent" agreement. He gave his consent to use his sperm on all eight eggs knowing that he'd had eight days to raise any objections or concerns, or to postpone his own appointment.

We have his texts saying he “wanted to help her have a baby.” Not 'help her fertilize some eggs but withhold agreement for implantation to some later date." He said "help her have a baby."

An Informed Consent statement is not a Co-Parenting or Sperm Donor contract, and there is simply no reasonable way he could have failed to understand that (unless he's a complete idiot)

 

[Tom Sawyer]

...
An Informed Consent statement is not a Co-Parenting or Sperm Donor contract, and there is simply no reasonable way he could have failed to understand that (unless he's a complete idiot)

It doesn't mean that at all. Not even slightly.

All that document is saying is that, in the event of a dispute over the use of the embryo, the hospital will abide by the rulings of the court. Given that the ruling of the court is the entirety of the issue under dispute, this document is completely irrelevant to the matter at hand.

The hospital is correct that it does not make any kind of decision over the ownership rights of the embryo because that's something totally out of their purview and it's good that they had something stating that it's not their problem. It is a legal matter for the court to decide. The court was supposed to stick to an extremely basic understanding of contract law over a case which didn't have any complexity muddying up the interpretation. They had a signed contract requring consent of both parties to use the embryo. That explicitly covers three different scenarios:

A) Both parties consent to the use. The embryo can be used.
B) Neither party consents to the use. The embryo cannot be used.
C) One party consents to the use and one does not. The embryo cannot be used.

Situation C is not somehow ambiguous and undefined or up for interpretation. It is a very explicit part of what requiring both people's consent means.

If only one person consents to sex, you don't have sex. If you were to create a list of situations where that doesn't apply, such as:
"She was wearing slutty clothes"
"She got drunk at a frat party"
"She ordered the lobster"
"Five out of the six participants enjoyed the gang rape, so it was a net benefit to society for us to rape her"

All of those are invalid things to add to the list. Anything else that you could put on the list would be an invalid thing to add to the list. The only important factor is that one party didn't consent to the sex, so the sex should not happen.

It's identical with anything else requiring the consent of both parties. If one doesn't consent to doing the thing, the thing does not get done. Full stop. Any reasons that you add to the list as to why it doesn't apply are invalid things to add to the list because the only important factor is that one of the parties did not consent, so you don't do it.

 

[RavenSky]

You continue to maintain the position that (1) there is no such thing as a binding contract that is not written and signed, and (2) that a third party Informed Consent document is the same as a "co-parenting" or "sperm donor" agreement.

I disagree with both of your premises, and have provided ample documentation and facts to support my position. I've even given you documentation to support your position, then refuted it.

You've given me your opinion.

I respect that you have an opinion on the matter. I still disagree with it, but see no reason to discuss it further in the absence of any facts or documentation on your part.

 

[The Paul]

Kindly provide evidence that he "refused" to sign it. It is clear that by using that specific word, you are implying knowledge that he disagreed with the terms of the agreement. The mere fact that neither of them signed it does not in and of itself indicate that either of them was in disagreement on its terms.

No.

The alternative here is a couple of people decided to pay some lawyers to draw up a contract for them, and when it was all done they met to review it, both read the thing, both felt this was a great idea and had no objections to the terms, and then said, "Well, as long as we're both already here, and we've got the thing, and we've already paid for it, we might as well not bother signing it."

You can pretend that kind of scenario deserves serious consideration and demand it I prove it never took place, if you like. If you're going to play make-believe in order to support your interpretation, though, I'm going to draw the obvious conclusions and move on.

 

[Tom Sawyer]

You continue to maintain the position that (1) there is no such thing as a binding contract that is not written and signed, and (2) that a third party Informed Consent document is the same as a "co-parenting" or "sperm donor" agreement.

I disagree with both of your premises, and have provided ample documentation and facts to support my position. I've even given you documentation to support your position, then refuted it.

You've given me your opinion.

I respect that you have an opinion on the matter. I still disagree with it, but see no reason to discuss it further in the absence of any facts or documentation on your part.

1) I'm not saying that at all. There are clearly many, many, many instances where they are the case. This, however, is not one of them. They did not agree to anything afterwards and were in the midst of discussing changes to the agreement but never settled on one since the man required guarantees which could not be given. That means that the original contract in this case (and not as some kind of overarching statement concerning contract law in general) shoudl have remained in force.

2) The Third Party document was between them and the hospital. It's not relevant to the dispute, which concerns the contract they signed with each other. All the hospital's document did was say that in the event of a dispute, the hospital would defer to the ruling of the court. The hospital was correct in performing the procedure following the court's ruling, since they properly took no position beyond abiding by the legal ruling. It's the court which was at fault by making an improper ruling.

 

[Toni]

Kindly provide evidence that he "refused" to sign it. It is clear that by using that specific word, you are implying knowledge that he disagreed with the terms of the agreement. The mere fact that neither of them signed it does not in and of itself indicate that either of them was in disagreement on its terms.

No.

The alternative here is a couple of people decided to pay some lawyers to draw up a contract for them, and when it was all done they met to review it, both read the thing, both felt this was a great idea and had no objections to the terms, and then said, "Well, as long as we're both already here, and we've got the thing, and we've already paid for it, we might as well not bother signing it."

You can pretend that kind of scenario deserves serious consideration and demand it I prove it never took place, if you like. If you're going to play make-believe in order to support your interpretation, though, I'm going to draw the obvious conclusions and move on.

The reality is that they had a contract drawn up and didn't sign it because: We don't know. But it is reasonable to assume that one or both wanted some time to think the contract over. Which would have been a reasonable and understandable thing to do. Especially since this all happened very quickly.

The other thing is that no matter what contract you draw up, it cannot be enforced if the contract is contrary to law. In the case of new technology assisted reproduction, how society and how the law views and deals with the complex issues involved is still developing.

 

[Toni]

You continue to maintain the position that (1) there is no such thing as a binding contract that is not written and signed, and (2) that a third party Informed Consent document is the same as a "co-parenting" or "sperm donor" agreement.

I disagree with both of your premises, and have provided ample documentation and facts to support my position. I've even given you documentation to support your position, then refuted it.

You've given me your opinion.

I respect that you have an opinion on the matter. I still disagree with it, but see no reason to discuss it further in the absence of any facts or documentation on your part.

1) I'm not saying that at all. There are clearly many, many, many instances where they are the case. This, however, is not one of them. They did not agree to anything afterwards and were in the midst of discussing changes to the agreement but never settled on one since the man required guarantees which could not be given. That means that the original contract in this case (and not as some kind of overarching statement concerning contract law in general) shoudl have remained in force.

2) The Third Party document was between them and the hospital. It's not relevant to the dispute, which concerns the contract they signed with each other. All the hospital's document did was say that in the event of a dispute, the hospital would defer to the ruling of the court. The hospital was correct in performing the procedure following the court's ruling, since they properly took no position beyond abiding by the legal ruling. It's the court which was at fault by making an improper ruling.

Tom, you cannot possibly know for certain what they did and did not agree to after signing the initial documents. So far, two courts have sorted through the details and have decided that verbal contracts (note the plural) stood over the signed documents. As far as I know, the hospital has not performed any procedure related to implanting the embryos. News accounts have stated that both parties have agreed to not implant until all appeals are final.

 

[The Paul]

Kindly provide evidence that he "refused" to sign it. It is clear that by using that specific word, you are implying knowledge that he disagreed with the terms of the agreement. The mere fact that neither of them signed it does not in and of itself indicate that either of them was in disagreement on its terms.

No.

The alternative here is a couple of people decided to pay some lawyers to draw up a contract for them, and when it was all done they met to review it, both read the thing, both felt this was a great idea and had no objections to the terms, and then said, "Well, as long as we're both already here, and we've got the thing, and we've already paid for it, we might as well not bother signing it."

You can pretend that kind of scenario deserves serious consideration and demand it I prove it never took place, if you like. If you're going to play make-believe in order to support your interpretation, though, I'm going to draw the obvious conclusions and move on.

The reality is that they had a contract drawn up and didn't sign it because: We don't know. But it is reasonable to assume that one or both wanted some time to think the contract over. Which would have been a reasonable and understandable thing to do. Especially since this all happened very quickly.

The other thing is that no matter what contract you draw up, it cannot be enforced if the contract is contrary to law. In the case of new technology assisted reproduction, how society and how the law views and deals with the complex issues involved is still developing.

Well, I suppose it's possible he only wanted some time to think it over.

If that's the case, given that the contract never got signed we know what he eventually decided after "sleeping on it" so to speak.

I mean, this really isn't rocket surgery. If someone is presented with a contract and they don't sign the contract it's pretty safe assumption that they don't agree to be bound by the terms of that contract. If the purpose of the contract is for one party to give up some rights or authority assigned to them by a previous contract, then it's safe to assume they do not agree to give up those rights or authority.

Yes, there are complicated cases where nothing got signed and people followed informal or verbal agreements to a point and now disagree. Yes, unsigned contracts are good indicators of what was actually agreed to in those situations. Yes, it's possible to pretend this situation is far more complicated than it really is, but if your position can't be supported without pretending that you're incapable of understanding this very simple concept there's probably something wrong with it.

 

[Toni]

Kindly provide evidence that he "refused" to sign it. It is clear that by using that specific word, you are implying knowledge that he disagreed with the terms of the agreement. The mere fact that neither of them signed it does not in and of itself indicate that either of them was in disagreement on its terms.

No.

The alternative here is a couple of people decided to pay some lawyers to draw up a contract for them, and when it was all done they met to review it, both read the thing, both felt this was a great idea and had no objections to the terms, and then said, "Well, as long as we're both already here, and we've got the thing, and we've already paid for it, we might as well not bother signing it."

You can pretend that kind of scenario deserves serious consideration and demand it I prove it never took place, if you like. If you're going to play make-believe in order to support your interpretation, though, I'm going to draw the obvious conclusions and move on.

The reality is that they had a contract drawn up and didn't sign it because: We don't know. But it is reasonable to assume that one or both wanted some time to think the contract over. Which would have been a reasonable and understandable thing to do. Especially since this all happened very quickly.

The other thing is that no matter what contract you draw up, it cannot be enforced if the contract is contrary to law. In the case of new technology assisted reproduction, how society and how the law views and deals with the complex issues involved is still developing.

Well, I suppose it's possible he only wanted some time to think it over.

If that's the case, given that the contract never got signed we know what he eventually decided after "sleeping on it" so to speak.

I mean, this really isn't rocket surgery. If someone is presented with a contract and they don't sign the contract it's pretty safe assumption that they don't agree to be bound by the terms of that contract. If the purpose of the contract is for one party to give up some rights or authority assigned to them by a previous contract, then it's safe to assume they do not agree to give up those rights or authority.

Yes, there are complicated cases where nothing got signed and people followed informal or verbal agreements to a point and now disagree. Yes, unsigned contracts are good indicators of what was actually agreed to in those situations. Yes, it's possible to pretend this situation is far more complicated than it really is, but if your position can't be supported without pretending that you're incapable of understanding this very simple concept there's probably something wrong with it.

Except: they were still in a relationship until some time after the embryos were created and obviously were in communication with one another.

She says he told her he would sign the contract.

He says he never said that. They both have a vested interest in their version of what happened. It is also possible that she reasonably understood him to promise to sign it and that he never intended such a promise.

Given that he went ahead with the donation despite having misgivings (his current version of what happened), and given that he broke up with her via text, and further given that he said he began to question his decision after some friends, a girlfriend and his father objected to the donation: those all paint a picture of someone who does not want to face any sort of confrontation. So maybe he said one thing, to please Dunston or refrained from saying something else to avoid making Dunston upset.

The question is whether Dunston reasonably believed he wanted to make his donation and intended to allow implantation of the resulting embryos. It does not make sense for her to go through the trouble of using his sperm if she believed he was having doubts. Right up to the day the embryos were created, she could have arranged for an anonymous donor. Given the very high stakes for her, it is reasonable to believe that she proceeded believing she would be able to use the embryos.

 

[The Paul]

ill in a relationship until some time after the embryos were created and obviously were in communication with one another.

She says he told her he would sign the contract.

He says he never said that. They both have a vested interest in their version of what happened. It is also possible that she reasonably understood him to promise to sign it and that he never intended such a promise.

Yes, these sorts of he-said she-said situations are difficult to suss out.

Unless there's a contract or something, I mean.

 

[Metaphor]

I don't have a strong opinion on whether the court was right or wrong. What I know is that the situation is not as black and white as you're trying to make it look, and pretending that there was obviously one and only one valid contract which was ignored for no good reason is dishonest and doesn't help your argument. Oral agreements or unsigned contracts can be legally binding under specific circumstances, and can supercede a mutually signed written contract, as even your own analogy shows.

No, it is actually fairly black and white. They had a signed contract. They were negotiating a change to that contract but couldn't come to an agreement about the terms. That means that the original contract remains in force and there is not a new contract.

It isn't black and white. There is a signed agreement, an unsigned agreement that one claims he said he would sign and the other denies. Added are multiple verbal agreements and the fact that he performed the most essential part of all agreements by donating sperm.

Further, if he did not intend to actually allow the implantation of the embryos, he committed fraud and any signed contract would be void.

You may disagree as much as you like but so far, two courts have agreed with Dunston's position.

The 'unsigned' agreement is not an agreement. It is terms and conditions less favourable to him that he did not sign.

The fact that he performed the most essential part of the signed agreement is evidence he was acting on the signed agreement.

 

[Toni]

How does that differ from the essential part of the agreement that was unsigned?

It may be different in Australia but in the US, verbal agreements can have the same weight or even supersede written agreements.

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Written agreements or not, verbal agreements can be as binding and can supersede written agreements.