who's part of our panel this morning could not be here however i am certain he will be listening to the audio tape portion of your arguments when your case is called with those attorneys who are going to argue please step up to the podium and introduce yourselves each side will have fifteen minutes for argument appellants you have to budget your time put every mount of time you'd like for rebuttal must be taken from the fifteen minute fortune so take that into account and the color you hear this morning please call the first case federal rights there are essentially automatically apply it under illinois law and then there's more because the right to privacy under only again was drafted as the framers set forth in the constitution debates to be broader than a federal counterpart we know from  supreme court case law and precedent from this court the baby doll case that the freed freedom of choice in measure procreate the family life is a fundamental right the baby doll case says that the right to privacy under the oh my constitution encompasses and guarantees debates about the scope of the only right to privacy which again as i just said was meant to be broader than just corresponding federal way but was also drafted for the purpose of preventing the invasion of bedroom into a seize based upon technological advances and that's more broadly and the reason we say that is because it talks about what the purpose of the writing of the privacy right going to be only constitution was meant to do it course to constitutional debates and part of those debates say this right is not defined and is left open meaning that the framers intended for the scope of their right to be formulated as exiguus and as exigencies presented as time unfolded and again there was a concern about technological advances eroding someone's right to privacy i am pregnant because if you read the other contract this isn't as justice as just you said about buying lumber or buying a chair or think this is about a potentially for human life and also the the dr dances making the argument that that is the initial agreement about we can't do  as exists over there's no issue about whether there was consent to their creation and their being frozen big issue is what do you do now when they're trying to be used and someone doesn't want them used our position is you need consent at the time of use because as the women quote said in his which is mirrored in the only public policy the only adoption statute allows for the revocation of consent up to seventy two hours after birth for the adoption of a child since only law allows people to change minds or whether they place a child for adoption when the child already born in existence we submit that will it probably powers he should allow you to change your mind about whether you create a child and bring it into existence in the first place and that's kind of at the heart of the contemporaneous mutual consent approach right but again consent to their creation is not the same thing as consent to their use and because they view it as a technology has allowed for essentially an alternative or substitute method for for sexual relations as the basis for having a child the fact that it's different procedure a different process it's still it's really different means to the same end and since it's a different means to the same end and is only cost because of advances in science and technology functionally and least for purposes of this cour the two should be considered the same and if a contract for sexual relations is done in forcible as supreme court has said this contract for it if you assume that the consent for the creation operates as a consent for the use  for evermore that should not be considered forcible because it's a kind it's an illegal contract for sexual relations whether you view it that way or if you adopt the contemporary's initial present approach the end result is the same consent just or needed at the time the embryos are sought to be used that's the basic point we are making there's so you need to consent and as witten recognize in a steep hill lay public policy as mentioned recognizes you can see people do change their minds probably even more than once about whether some future date that head is significance and you can't you know just for example a few legislature can add you in directly where they connect to directly you can't say well this is not the same of sexual intercourse when what you're doing is the same thing that sexual intercourse  you donate sperm for use of insemination the woman who is not your style so well presume you're not a natural father that doesn't prohibit someone from contracting to be the natural father if they want to and it does not prohibit contracts for the use of of  situation here so she's asking him to be a core pair with all those attendant duties and obligations because to show he's a matter of his resume his liberty interest his privacy rights in in procreation choosing whether to become a parent or not is not for this court to force  where the possibility relationship may change may separate you know death make you one of you may die you should consult an attorney and talk about what you want to do when the event your relationship changes or ends so that's what it says but it does none of that question if if if they don't agree either on the basis of the contract they signed or they can't agree because there is no consensual mutual funds at a later time what's the question is yes northwest is probably within its rights as a whip it's been two years we're going to do whatever they think the frankincense is we can do well dr dunston investors friends here just as free to go back and say look we want you to keep from storing them we'll pay whatever you want and we'll work it out and i would like to think that since these take up very little space obviously it's not going to be any burden whatsoever to keep them preserved frozen for as long as as as the science  really doesn't give no specificity of of what the rationale was for her ruling but i do think i can still train answer question because the thrust of dr johnson's argument was the reaver case from pennsylvania and dead it  was these are her less and therefore only in best chance of having biological children and i don't think actually that's correct right i don't think there's any medical evidence in the record to support that assertion but i'm not here to dispute it i don't  found i made analogies to the abortion issue because it's in a manifestation of the right of privacy interim liberty which exists i was it was under federal and state constitutional law i made an argument about public policy about the only force abilities contraception relations mr and the parties then to meet evidentiary standards when they have no idea what the test is yet and i'm not i don't mean to criticize touched on i bring up because this is this is resolved in summary judgment and hopefully when the three of us meet the judges will come up with a test say the basis for your ruling i would submit we have to stick with the facts of this case and the facts of this case appear to be you've got some sort of agreement that says no use can be made of these embryos without the consent of both parties and they both signed off it was never altered it was never amended it was never modified and the language appears to be unambiguous it appears to be clear have a language if we were to take a contract approach to this they have a leg which appears to me to make that contract of a fact the same and identical to have a which will agree or disagree i agree completely and i think this case was due respect just so into things to me that fundamentally in this particular case were way is it going to be contract is it going to be some sort of crazy balancing test not crazy but some sort of balancing test by the court i don't well my of my kids our position is that whether you do it by saying this is will enter into a new legal arrangement and under that legal arrangement is one critical condition and that is it dr johnson can use the criminals because i was always in the forefront of their intent so when jacob's intention is what did he do he started  talk about what happens between them in the event of divorce or dissolution of the barrier it goes on just to find what happens to as between doubt what happens upon death but you don't know what it says what happens between enforce contracts and what the other two will balance and then there's of course i want which has this contemporaneous mutual consent so property and we make no use of those embryos without your consent but if you if the relationship separates if you divorce separate and that event it's up to the court the criticism of  arising from this carl coleman the call that appeared in the minnesota law review which frankly i have difficulty understanding but at least i think there is not a case now but it's some sort of  our opponent who believes that these contracts somehow violate public policy although it's not clear today i believe he said he doesn't think they do violate public policy but only if the contract doesn't violate public policy why shouldn't we see that it's  a pretty good policy that there should be mutual consent the time he was i here we have a quite a different situation in that if their intent was always something to the contrary the intent was always that mr fancy was trying to help dr johnson have children in the event that she ever beat cancer which interests ah well actually before that i'm sorry there's a promissory estoppel here as well clearly plaintiff clearly promised that he was pretty his donating sperm promising that he would help her become a parent she was able if she was ever able to cancer she relied on that all eight of her eggs at retrieved were fertilized with his sperm to live on to a dutchman she's no more eggs that she could use today to try to become a mother so the course should and should current agreement it said that these agreements may not be enforceable oh she didn't rely on a promise of the agreement would be enforceable she relied on his promise to help her have children that's the problem city relied on which relied on and express a tour attachment so he should not prime very sensitive to her to her wishes and her emotions in this matter but it would seem to be there when two parties go into  a medical situation where the stone nation that they would very seriously consider signing a document which says no use can be made of these embryos without the consent of both our lives and if that was not their intent if that were the snap their agreement then they would not have signed but you don't it was important that the same day that they signed that they were sent to another attorney to determine how they would resolve the speech disputes between themselves that was the that was always within the contemplation the part that would be determined separately in fact informed consent says you should do that you should go see another attorney to figure out how you your sister no no you don't have to give it and she'll know that no i don't leave any court on earth would force him to have his kidney extracted and i think that the reason is if personal autonomy obligation so he would be obligated financially emotionally would be obligated in any way so back to how mrs offense will be affected critically if the court doesn't permit him to destroy embryos he can still become a father doesn't affect his ability to become a parent as it does my client strips and tire right from her he doesn't have any existential obligation to fatherhood generally he's agreed i've many times that if these embryos are not he raised then they can be given to another party the another couple  that's one of the reasons the already there were here i actually think he runs the deal breaker that i know that's not the case what happened was i this is france he demanded the type of anonymity that could never be provided so he required he requested the northwestern destroy all of its records that  husband objected he said that it's against public policy to force him to become a parent pennsylvania said public policy silent oasis and the court ultimately found that because it was the woman's last chance to use the it was has had biological children she could use a cream rio's the court also noted it's something that's been raised a little bit here that the husband implicitly agreed to procreate with the wife when he agreed to undergo i d f signed consent provided sperm and agree to unquote that's according record to fifty eight later in that same page she admits when i was questioning her deposition if she did that because of the possibility she would not want to use dr i'm sorry mr supremacy as a sperm donor so since she was aware of the possibility she might change your own mind about using mr fancy as a sperm donor she had to realize he might change his so she wants or allowing his saying and a date certain and march twenty five which is the day after she was first presented with the concept of five a day later he's saying i'll donate sperm a week later and it was sixty fertilized eggs if she reasonably thinks or if you think it's reasonable for her to think he might change my because i might have changed my mind and in a seven day period you're going to make a decision that impacts your life in the most personal and fundamental way that there could possibly be but he's bound by that for all time if that's your decision then then that's your decision but we submit that is not a reasonable position to take especially against since she knew she may change your mind it goes both ways respect to back to dos and she was just bootstrapping and begging the question the informed consent says you need both consents and nothing happened after that to change that contractual agreement and understanding and even if it did say he agreed then march twenty five or none of us are taking it's lately or suggesting that that her position is trivial but it's just france he has a right not to be a parent if he chooses not to be he may change his mind to morrow he may change his mind in a week he may never changes mind but that's it that's not for this or any court to say to somebody we're forcing you to be a parent and that's what this comes down to he doesn't want to be one and there are there alternatives for dr johnson she can adopt if she wants to it's not as if this is true then to the l and i can see i can see that but i'm saying there are other things that can be done which should be biological mother no but the idea that mr so you know again and i've said this in our papers who is it for this court or any court to say who decided to be a biological mother is somehow superior to his desire not to be we decide to force cases and child custody cases that's different everywhere that precisely of them every year especially that's different you're talking what to do with children already in existence and where would they better be where would their interests best served whether with the mother or the father or someone else this is talking about this case about bringing a child a human being into existence and we i dare say that the supreme court and states discourse you know a supreme court and any person that pretty much anyone in the plant would agree that that is qualitatively different than any other issue that would present be presented to a court or even to a person again just to most we think the most the two most important decisions you'll ever make in your lifetime are who you marry and you want to become a parent and that separate this from the any divorce case a traditional country case for a piece of lumber a chair selling a car selling a painting this is different and that's really what this case comes down to i understand that we you know in any country pay someone when someone loses but this is different this is talking about creating human life that makes this different from anything else and that's why we think that consent needs to be at the time of the use of the embryos not just when they're created because again in a seven day compressed time frame of this case read out over your life and with the enormous consequences of being a parent even if you never see this child just the idea of knowing there is one with your d n a is walking around you know if my kidneys removed and i don't want someone else to get it that could he's not going to talk or walk or develop in anything i have the right to control what happens with anything any part of my body in effect that it might be outside my body doesn't change the fact that i get to control what happens to it eat especially because you only reason these embryos existed because of technology and if this was  would have been nice if a dull fee people had acted more prudent really at the inception of the soul that matters taken under advisement thank you very much for your excellent briefs and your excellent argument