honour's we're here to determine as a score set forth in france he won or whether the contract existed between the parties and to enforce that contract as we've said for dinner briefs there is in fact such a contract it is the informed consent form the parties signed on march twenty five two thousand and ten i will stop you from a council in your briefs you refer to an oral contract of march twenty fourth yes which is your position on the march twenty fourth communication refer to that as the march twenty fourth oral contract what i want to know is is it your position that there was an oral agreement made on march twenty fourth yes you were given was to create a pre embryo was nothing more nothing less the critical end and that point justice lou de purdy's first testified that in that conversation on march twenty fourth the topic of consent to the use of the embryos in the future was something that was not discussed at all document says no use can be made of the embryos without the consent of both partners and dr kaser testified that he specifically discussed deposition with jacob and her talking about the northwestern hospital's informed  with where's we're in there is there anything that involves two of them and agree the agreement needed if and when the agreement was between the three of them between jacob curley and northwestern was dead northwestern would let there's nothing between the two parties there it was western this was for north western sperms that's what dr dunston is going to argue but this is not simply for north west it's purpose because again jacob in curve assigned it they test compay contained on pages eleven and twelve of the twenty one page document correct yes and it falls under the subsection a to c which is titled technique of i p f it goes on to describe the disposition of embryos which  separate from section f legal considerations and legal counsel which doesn't refer to anything regarding crown preservation is that correct this such an f b o that talks about the well being is settled in this area so under section eight isn't the placement of the language embryos are understood to be your property with rights of survivorship also under that sub part immediately afterward some part eight says quote in the event of divorce or dissolution of the marriage or partnership and after affirming to northwestern will abide by the terms of the court to create or settlement agreement regarding the ownership and or other rights to the embryos isn't that what the section is referring to we will defer to what agreement you have in place that's talking about interviewing to produce may reach in the future when they may have walking in the door agreement at the time it was made notice was a agreement that was done and of seven when a phone call between the parties were jacob testified he was at work and actually you know and a cell phone in a bathroom they  repetitive and the fact that everything is moved quickly but we're talking about also a situation in which within twenty four hours there's been performance on the contract correct the first spam deposit was march twenty fifth approximately twenty no they didn't consider the issue of how and when would we use them in the future the focus was ok we should create them now because i have to undergo chemotherapy then how can we read or interpret or construe an intent by mr so france he to reserve the right to object or withhold consent how can we construe that into the agreement if it wasn't contemplated you in your brief have indicated that secret intent or unmanifest intent unexpressed intent cannot be the basis for reaching mutual sent necessary to modify term limit or to interpret an agreement how do we get to that part if it's never been expressed because the next day they signed a form that said you both must consent to the agreement of march twenty fifth contained something that he agreement of march twenty fourth did not address did not consider that's that's how you get there and so you're saying that this is the one occasion when the intent and the agreement by both parties france ski a veto power essentially over all of the remaining frozen embryos that are that are left following this procedure this is where the parties have manifested their agreement in the document and that's it right they have no other again to this discussion march twenty fourth didn't address that issue did that in the record was there evidence that they discussed the parties discuss you don't know what can happen in the future you may separate who knows what can you know who knows what the future holds so yes go talk to a lawyer but for rate no we're going to agree that you both have to consent if you want to go ahead and do whatever you want to do after that and make a new agreement scenario there had been a situation where the parties had already met with ms decide before coming in let's say hypothetically they met with miss decide the morning of march twenty fifth instead of the afternoon and they had already signed  will stick with dr johnson dr dunston as the sole custody let's say they entered into a contract in which she was given sole custody and the right to use the proper preserved embryos without limitation and they still signed the informed consent because as dr taser testified it can't be changed and it can't be a lot of five then what does that do what are you saying the informed consent then changes or modifies the agreement that the parties would have entered signed in march of two thousand and ten again no one asked to change it and to say that something you learned four years later gives you the right to argue something that you didn't know and didn't express at the time i think is is now crapper the  n jested and the informed consent what i would expect is if they in fact had many to decide on march twenty fourth and just enter the contract under the terms you've set forth that on march twenty fifth the very next day when they're speaking with dr kaser and he says oh by the way here's this form you both must consent i would have expected one of birth and say hey wait a minute we already signed something that says this and now your essence of saying something that's directly contradictory that's what i've expected of happened in the fact that it didn't means again that date agreed with his position that you both must consent and he said good work something out later but that later never happened so that the proteas have to live with the contract that they  made yes you know you're here because the circuit or determine that on march twenty fourth the parties mutually agreed they're not current that would have the sole control over the  and control of the future use of the embryos was something you never discussed in march twenty fourth what judge paul said was they both harbor doubts about their relationship but they never told each other that and that was one factor for her ruling as just freely admitted never discussed never discussed correct so therefore the court served for its solution this one against the man of the sway of the evidence yes it is because i do not see how the circuit court could have found as the court did in express agreement that karla could use the embryos without needing jacobs consent in the face of testimony that that was an issue they never discuss the other another basis for her ruling was a statements taken made in an e mail  september of two thousand and ten but nothing in that e mail and i dare say nothing else in the record indicates that on march twenty fourth jacob intended for her for carla to not need his consent and under the case well you introduce construe a contract based upon the intent of the parties at the time the contract is made so nothing that happened afterwards after march twenty fourth can be relied upon to do to say what the parties intended i march twenty fourth again there's no evidence in the record where jacobs says well you know  december first he sent an e mail saying well on march twenty fourth i meant this there isn't anything like there's just a statement of september tenth or september two thousand and ten after the fact which can be applied retroactively to impute intent to a prior event and i think the child that he was uncomfortable with it but that it was ultimately her decision that was something he sent an e mail on as he testified by that comment he did not mean that she would have the right to act as she pleased with the pre embryo as he meant that it was up to her where to go next whether we go to litigation and train sorted out or they keep talking trying to work something out but he didn't ask her explicitly if that she would have some consideration of his feelings as he did yes i mean that i'm not going to hide from the fact that those e mails are there and i'm not going to hide from what they say what i will say though is none of those documents are emails are being right apart as is being the basis of a contract whereby karla can use young girls without his consent what happened after those emails were sent was various exchanges between the parties in their advantage and car was still then and still attorneys and jacobs den attorney about seven agreements none of which came to fruition and which they were testified she didn't agree to any of them does not want them destroyed he simply wants his his right to be respected to give consent to their use and they he may consent in a day a month a year he may never consent but that's we don't know what the future holds but his right answer is if that has changed her perceptions of the case and the allegations she's made and ensure she's become a mother was also seen taken to become a father and that's really what a balancing of interest is all about she's radically attained many of the things she had alleged she wanted when thorough i suppose but yes we're not here to talk about a bill saying she dressed it but we're here to talk about it contractual and elsa's yes schroeder on it there were two two let's say for lack of our term two sperm deposit events correct i was march twenty fifth the second one was on the day of the retrieval as well that was the parole the pro six i think yes so if we were to construe the informed consent document the twenty two page document as a binding contract for all three parties there is a provision under page seven that talks about how many eggs you know should be  you think that under your scenario if the informed consent regarding disposition of the embryos was reached by greenman of the parties on march twenty fifth does that change on april sets on this second event when the circumstances have changed and this notation from march twenty fifth no longer has any possibility either so what does that do to the informed consent it's changed the circumstances ha it has not because the purdy's you know there is no guarantee about how many eggs would have been harvested and that was part that is expressed in the consent form itself the possibility that not as many as expected would be harvested and the documented resin facts same store with the provision that no use can be made with the embers without the consent of both parties so regardless of how many eggs were frozen versus how many embryos were frozen dr dunston knew that no matter what whatever embryos were created in frozen ok thank you very much y others you were being asked to decide whether dr carla dunston can pursue her only option for having biological children the pretty embryos at the heart of this case were very intentionally created by the parties so that carla could use them to attempt to have a child if she survived cancer to that and jacob repeatedly and consistently told carla that he wanted to help her not simply create pre embryo but have a child and you know when we agreed to fertilize with his sperm the final exit carla would ever create holding jacob to his promise to help karla have a child is not only well founded in contract but is also the most equitable result your honour's i'd like to first address the oral contract the area judge talk correctly concluded that the parties recession or contract pursuant to which c control march twenty fifth that in the event the parties were to separate carl what should control the disposition of the pre embryo cheikh up again on march twenty fourth first told carla he agreed to provide a sperm knowing the background that carla had been diagnosed with cancer she had to undergo to see her there for her own that was the march twenty fourth oral just something phone so the phone was there gave her the rights to told you i want to help you have a child there were no other contingencies or limitations imposed on that but those that imply mutual consent to him these loose of control in one person isn't that a bit of a stretch it's true  receive it's true that the specific word consent was never used but the intention of the parties was always that karla could use them in any circumstance to tell to have a child with the return of her house now judge hall didn't simply look at the march twenty fourth agreement she determined that she could consider contemporaneous or subsequent acts in order to determine the intent of the parties as of march twenty fourth when we look to the full course of conduct kind of tween march twenty fourth author jacobs june fourteenth and well there's two reasons your honor first of all the the consent provision in the informed consent does not say anything about the separation of the parties dr kaser testified the informed consent does not document the party's wishes with respect to  form every couple is likely to handle it in a different way and we feel that it's more appropriate for them to get legal counsel to document their specific desires disposition and in particular if they ultimately split up jacob likewise admits the parties were never asked to agree on right jacob testified in fact that he did read to co parent greenman on march twenty ninth never told carla or mr site that he disagreed with any of his terms and went on more than a week later on april sixth not only to provide his  but to knowingly fertilize the final eight eggs that carly dunstan whatever produce knowing full well when he did that she wouldn't have the chance to go back and use another donor and these would be her only opportunity to ever have a biological child who has never said this she has had a non biological child that's correct i think that probably is all agree that the specific word consent was never used but they also agree that jacob repeatedly told both karla and third parties that he was doing this for the sole purpose of helping carla have a child with her turn over how not simply to create pre embryo that they could talk about later whether or not they could use them if they knew that this was a car with last chance to have biological children that is the deliberate reason for which these three embryos were created and jacob knew that going into it and knowing all that and also knowing as judge paul found that he didn't see a romantic future with karla knowing all of that he did not condition her use of the pre embryo is on his contemporaneous consent on the continuation of the romantic relationship between the parties didn't impose any sort of limitations he simply said i want to help you have a child june fourteenth which judge paul pointed to is the most persuasive evidence of jacob's intent regarding future disposition of the two key things of that e mail number one i rather desired you to have a child of your own in the future with the return of your health not for us to have a child when that time came and number two well i know that i must make a choice in this and choose to leave it up to you ultimately to decide karla and whether specter that second same judge paul made a specific factual finding that what jacob meant as he was leaving it up to karla to decide how to use the pre embryo she did not find credible jacob statement that he was leaving it up to carla to decide whether to proceed with a lawsuit or not isn't that again is it that e mail after the fact it is after the fact your honor but the case law says that in determining meaning in the mind when a contract is silent you can look to contemporaneous or subsequent acts of words so this although it occurred subsequent to the oral agreement sheds light on jacob's inten at the time he entered into that agreement on march twenty fourth but let's say based on the evidence in the record as well as ms harris testimony i mean let's let's clarify one thing it appears that many of the communications were written for a third party as well for ms harris is that correct miss here if ashley harris oh i see yes ok correct it seems like she she was she was interested in what was being communicated to carla and she testified that that last line was written as a polite gesture right ok is that what she said i believe there's a right why would that have a retroactive effect on what the parties intention was well i certainly don't believe that jacob ever testified that miss harris had any sort of influence on the words that he was using he also testified that when he wrote that you can fourteenth two  disputes over a disposition of rio's is to honor the party's mutually expressed intent of the in from consent simply doesn't do this to put it in context it's a standard consent form drafted by northwestern not for jacob and carla but for every couple that's considering undergoing i v s it's undisputed that the consent form jacob seeks to enforce was a take it or leave it provision it was on modifiable even if the parties had reached a previous agreements to disposition and a plain reading of the term reveals it did not address separation of the the present circumstance will provide the parties with any sort of disposition of choice this makes it different from any of the pre embryo cases that have enforced a informed consent we're not aware of any cases in which informed consent that left the parties with no dispositional choice and did not contemplate the specific circumstance that the parties were in was enforced to the contrary courts are going to different ways with these provisions certain courts have a concluded that informed consent simply should not be considered dispositional agreements example to force and allow the parties to select from various disease or general options for example donate to female partner donate to male partner donate to another couple donate to research this consent provision does not do either of those things have there been any informed consent am not aware of any cases that involve unmarried partners but i will say that divorce is not the only contingency that these courts hang their hat on and one example of that is the dollar case out of oregon and that case the contingency was  the parties would not be able to reach agreement on the disposition of the embryos in which case they selected the right to be the primary decision maker at the court held in that case that because they were given choices when they were entered into the agreement it could be enforceable again here there was simply partner separation it is important for you to decide what should be done with any of your creel preserved embryos that remain in the laboratory in such an eventuality and number two in the event of dissolution of the dissolution of the partnership northwestern will abide by the terms of the court to create or settlement agreement regarding ownership and or other rights to the embryos those provisions specifically contemplate separation the parties urge the parties to visit outside counsel to reach their own agreement which is exactly what the parties did and that that  the purpose of creating a contract that set forth the party's wishes with respect to the preamble is again not worth western's wishes but the parties wishes missed decide a neutral third party witness testified jacob told her she should be able to use the pre embryo so if the parties were to split and he wanted to johnson have children she said quote the idea they both came in with was that he wanted to help her have these kids jacob testify that at this meeting with mr sipe he didn't see if there were any possible circumstances that could arise in the future under which karl rove would not be able to did he testify also at one point that he thought the co parent agreement gave him equal rights to a child and therefore by inference equal rights to any pre embryo i believe what he testified was that his his general understanding of co parent agreements was that the parties would be in equal position however the current agreement as drafted specifically included a provision it's in the record of page five or four that says well should be intended  now both dr kaser as well as mr testified that it actually quite common in a situation and when a party is unexpectedly diagnosed with cancer and has imminent chemotherapy that the dispositional agreement may not be able to be executed prior to creation of the agreement that said carla should control the disposition of the pre embryo if the parties were to separate and despite reading that never twelve cars that were missed decide he disagreed with that term or any other term of the agreement and went on on april sixth to knowingly fertilize the final eight would ever create dr kaser told the parties that if you were eggs had been retrieved then anticipated he said if you want to maximize your chances of having a child you should fertilize all eight carla specifically asked jacob what to do because she testified she needed him to be on  interests have been satisfied at this point because she is a non biological child we disagree with that we think having a biological child is a unique distinct interest there will always be alternatives to achieving non biological parent hood and a finding that such alternatives impact a balancing test would result in a uniform finding against the party seeking to use the embryos the rebbe court rejected this argument the husband argued that both adoption and foster parenting were available to the wife and the court said our consideration is in the wife's interest to procreate as opposed to achieving any sort of parenthood here the interest in biological parent is simply separate and distinct from other forms of parent insemination over woman other than the donor's wife shall be treated in law as if he were not the natural file father of the child conceived within that's directly on point carl has repeatedly extended to jacob the offer to have him declared a sperm donor under that act that remains alive offer is that something that you or seeking a ruling on or ask asking for declaratory and i was that's not something that's part of the record we had i believe we had asked for that in the lower court in judge paul didn't specifically rule  but but certainly we believe that it by law applies in this situation over and over compelling interest in cardless favor is simply the knowledge and reliance or jacob knew when he agreed to create these embryos that carla was in this position nonetheless that he loves ashley harris but she testified that the preponderance had nothing to do with the break up that's on the record at page three zero one three zero two jacob testified that on identify people might not think the same of him because they don't know how they will feel if he's not involved in the life  any children that are born this is speculative it can be alleviated because carly doesn't seek to prohibit jacob from being a legal father if that's what he chooses she's simply not trying to compel him to do so third shake of testified he doesn't know if anyone want to be express purpose of having a biological child finally jacob testified that he has some privacy concerns of those or are moved by the institution of the lawsuit which jacob himself did counselor i have one quick question at what point would he have had any re right in this what if he had just donated his sperm and that was it and the process had started and they haven't been used to fertilize the pre embryo yet could he rescind his participation at that point is are there increment toll between march twenty fifth and april sixth he changed his mind i suppose at that point he he he could have revoked however that's obviously not the situation that we're and the problem is that he didn't do that and so now we can't undo his actions the sperm no longer exists it's fertilized the eggs he's a pre embryo there the last three embryos tarlac cannot go back and use another donor in the hypothetical she could have used an anonymous donor she could have simply frozen eggs and hope that you know to use a different donor down the line but he took that away from her specifically by agreeing to provide a sperm and specifically by telling her that he wanted her to help have a biological child if i could quickly it's a good question your honor at the parties and to go she did some sperm donor agreements take a broker that he was willing to enter into a an agreement that would give her the rights he was the free embryos and that he wanted her to have them that was on september tenth the parties negotiated a number knowingly agrees to fertilize them knowing when he does so that color will not be able to use another donor card or testify that she relied on this and that it shouldn't ever known at any point up to the fertilization of eggs that jacob had even a doubt in his mind that should be able to use then she would have testified she specifically asked if he was on board with fertilizing all wait because she had to know this was her only chance to have these children she wanted to do everything she could to preserve it he specifically said fertilized all eight and were in the situation we are now if your honor said no furthe honor justice here or sit in the on the head there is nothing in the record that shows any agreement about the consent issue and march twenty fourth there is everything in the record that shows that in march twenty fifth the agreed they both had to consent again because dr kaser told them that's what the documents said they said there heard him and then signed it so that issue we like to think at least is for close just the same when you asked about reconciling jacob's testimony that he never considered consent with his other testimony that he did know one thing with use without his consent i think the reconciliation is the first testimony was relating to my question him directly about conversation on march twenty is later testimony was not relating to the march twenty fourth vence i think it was more broadly about the case in general and if you go to the record and page ninety six and in ninety seven jacob says everything was in reference to the consent you are presumed to have now and you haven't a cent of the document you signed she signed something on march twenty fifth not only signing it but being told what it said and then signed it that you'd lemonades any possibility of there being any help is not the same as unfettered consent and also that was on march twenty fifth under bank of ravenswood in other cases you look at intent as of the date the contract was executed that was what he said on march twenty fifth he didn't say march twenty fifth what i meant yesterday was he could do this so that testimony can was an improper basis for the circuit court's ruling to them dr kaser if you look at his testimony page for forty three and four forty six of the record we talk couples if they're not married and they wish in the future to use the embryos for the purpose of initiating a pregnancy that they both have to sign off on that before we're provide them head under this agreement we signed the code to draft their parent or community decides testimony is replete it was a discussion point it was there was no conclusive decision was made at the meeting it was a direction i thought they were headed in in terms of probably having the sole right to control the use of the embryos she said quote no conclusive decision was made at the meeting doesn't matter there for a check of said i mean he may have said i want her to have them but need to sign as a circuit court found they didn't agree on anything when they met with  but right now right here the contract that they signed gives him the right to control how they're used as it does with her and that right has to be respected we submit to circuit court erred in ruling that could have the sole right to decide how to use the embryos  become a parent against his will degree but that was not something that would be foisted upon him respectfully and we were not heartless we understand the crevice position but jacob has concerns here as well and those need to be respected and that's what we're asking you to do so we would ask that you