' [Birth Mother] First Mother Forum: Assisted reproduction ignores the best interests of the child

Wednesday, May 21, 2014

Assisted reproduction ignores the best interests of the child

Jacob Szfranski, unwilling to be a father
Last week, a Chicago judge awarded custody of frozen embryos to Karla Dunston over the objection of her ex-boyfriend, Jacob Szfranski, who donated the sperm used to create the embryos with her ova. In 2010, 38 year old Dunston, a physician, learned she had cancer and treatment would render her sterile. After the embryos were created and frozen, Szafranski decided he did not want to be a father and sued for custody of the embryos.

A trial court ruled for Dunston based on the fact that her desire to be a mother outweighed his desire not to be a father. An appellate court reversed, holding, according to the Chicago Tribune, that "the case should be decided based on contracts and agreements between the two parties rather than just who has more compelling interest in the fate of the embryos." (emphasis added). On Friday, the trial court again awarded the embryos to Dunston. Szafranski said he will appeal again.

We sympathize with Dunston's desire to be a mother but it makes us a uncomfortable to bring children into the world whose father fought repeated court battles to prevent them from being born. We're aware of women who gave birth although the father urged an abortion and we don't fault these women. In those cases, at least, it was possible the child could receive support from the father and perhaps even have a relationship which has often proved to be the case. In the Chicago case, however, if children are born, Szfranski will have no responsibility or rights.

Last week I wrote about a California Court of Appeal decision giving Jason Patric a fighting chance to father his baby. Patric and his on-and-off girl friend Danielle Schreiber agreed to create a child via IVF using her ova and his sperm. After baby Gus was born, Patric and Schreiber lived together for two years. When they split, Schreiber sought to cut Patric out of Gus's life using a California law that gave no paternal rights to sperm donors. A lower court agreed. Last week, the Court of Appeals reversed holding that while Patric had no rights under the sperm donor law, he should have a chance to acquire fatherhood status under a law giving an unmarried father rights if he "receives the child into his home and openly holds out the child as his natural child." Notable was a lack of consideration of the benefit to Gus in continuing to have his father in his life.

In an earlier case, the California court held that the law applies equally to ova donation. Thus where one partner of a lesbian couple donated her ova and the other carried the twins conceived through IVF, a lower court held that the ova donor had no right to the children. The California Supreme Court reversed because the couple lived together and intended to bring the children into their joint home. That the children might be better off knowing the mother whose DNA they carried was not part of the decision.

It's troubling that in these cases and many others involved assisted reproduction, the fate of human beings depends on the laws of contract. There is no a mention of  "best interests of the child," hallowed words in laws governing adoption, child welfare, and custody disputes in divorce. The people responsible for the assisted reproduction laws apparently believed (or found it in their best interests to assert) that children created through technology will adapt to the parents the law gives them. Their position is bolstered by the concept of "psychological parent" introduced forty years ago by Anna Freud (Sigmund's daughter), Joseph Goldstein, and Albert Solnit in Beyond the Best Interests of the Child. According to the authors, biological relationships were irrelevant; what counted was psychological relationships forged by day-to-day interaction, companionship, and shared experiences. The concept of "psychological parent" also led to laws allowing grandparents, step-parents, and others to trump the rights of natural parents.

Today, we know from the experiences of those who were adopted as infants that the importance of

biological connections does not disappear, that children are not blank slates. They share not only looks but interests, talents, and personalities with those whose genes they carry. Biological parents are parents, no matter what kind of agreements they have entered into and children benefit by knowing these parents. Domestic adoption practice has now incorporated these facts through open adoptions. Lessons learned in adoption need to be applied to children created through assisted reproduction.--jane
Judge gives embryos to woman over objection from ex-boyfriend
Jason P. v. Danielle S. B248629, 5/14/14
Joseph Goldstein, Anna Freud, and Albert J. Solnit, Beyond the Best Interests of A Child, 1973 

Jason Patric wins right to be a 'father'

Lethal Secrets 
By Annette Baran and Reuben Pannor
Everyone considering having a child from "donor sperm" should read this book before proceeding. It builds a convincing case that likes of omission can create dysfunctional families and disturbed children with inherent psychological problems. Baran and Panno demonstrate the need to maintain a strong sense of importance of the human element and historic, genetic connections.


  1. I find it more and more interesting that the "letter" of the law is being used to abandon the intent. The law says that he has said he is the father, therefore, barring a DNA test showing he is not, he has the rights that any father has. The "letter" of the law states that because it was IVF he is a sperm donor...... the intent somehow got lost.

    I agree that it is sad that the resulting children are not being considered at all..... but when you treat a child like a commodity, that is the result.

  2. There are so many ways in which we as a society minimize children and manipulate them, including their very existence, for the adults' benefit. When my husband was a young student, he thought about becoming a lawyer representing the rights of the unborn. A friend asked him," Why would you do that? The unborn have no money!" It is a sad, universal truth that "Might is Right" and "Money Talks." We have created much trauma in future generations by manipulating young lives to the extent we do.

  3. 5 day old embryos don't have independent legal standing in court.

    It is not possible for a judge to determine the best interests of a child when no child exists. This is not a frivolous choice of the court. It's not legally possible.

  4. I have to agree with the Anonymous poster above. As someone who is pro-choice, I find it a slippery slope to judge "in the best interest of the child" when there is no child, at least not in the legal sense. It seems hypocritical to judge in the best interest of the child in this case and then allow abortions. Can't have it both ways if you are pro-choice. It is an easier argument for pro-lifers.
    In the Patric case, there is an actual child involved, so YES! the best interest of the child should be the most important factor.
    A random thought: Isn't it a little late for Szafranski to decide he doesn't want to be a father?
    Technology is scary on so many levels...

  5. Lorraine and I are both pro-choice. I donate every year to the NARAL affiliate, Pro-Choice Oregon.

    The point is that laws should be designed so that if children are born, their interests are served. In other words, this situation should not have occurred.

    Laws governing assisted reproduction are designed to meet adults' needs with no consideration to the resulting child. If Dunston had gotten pregnant by Szfranski the old-fashioned way, she could choose to have the baby or not. Under child welfare laws, if she chose to have the baby, he could be ordered to pay support and he would have the right to have a relationship with the child unless he was unfit.

    Instead we have a lawsuit over who owns the embryos, applying the laws of contract.. There is no right decision in this case.

    1. I have been a member of NARAL since its inception.

  6. The Anonymous poster is correct, but that is precisely what my husband hoped to do as a lawyer (which he didn't become, for unrelated reasons): argue in favor of rights for the unborn. If the killing of a fetus is considered murder, at least in some states, then we certainly can advocate the creation of additional laws/rights to protect the unborn.

    For now, I mostly am concerned with how casually we treat the creation of life, thanks to technological "advances."

  7. I still have to wonder what is in a child's best interest.... after all, my daughter (according to her) was placed in an adoptive home - in the best interests of the child - and then abused badly. At the same time, my home was safe, no abuse and she was loved as all children should be. However, a social worker decided it was in her best interests to have a mother and a father in the home and money..... none of which was true.

    So when we talk of the best interests of the child - who are we really talking about?

    1. So sorry about your and your daughter's experience, Lori. Why do I keep hearing and reading about these awful placements decades ago. Either neglect or some type of abuse. Were there ever thorough home checks and what were social workers thinking in some of these AP approvals??
      Like it's not a rough enough situation for the moms and kids being separated, then throwing more fuel in the fire with horrible APs. It's too sad.

    2. As an AP, I feel I can speak to this having gone through the homestudy process. I don't know how stringent the process was then, but no matter how stringent anyone feels it is now, it's easy to fake or get through a honestudy. If you don't have a conviction for child abuse, there's nothing to find for example. The social worker interviews vary from company to company, the training is not consistent for them, and the laws of what's acceptable change with every state. We had 6 hours of conversations with social workers. It's easy to act like you've processed your grief over infertility even if you haven't. It's easy to lie and say you'll never spank a child even if you believe that's what should happen. There's not currently a good way to make sure that those things don't happen. We had post placement visits but those only happen for so long. After that, the family is on their own. There are still cases happening today where children are hurt or die (Hanna Williams for example) due to abuse in families that swore they would love them. There are changes that NEED to happen, and many APs never abuse their children physically. Many don't understand or want to understand the challenges that adoptees face. They'd rather pretend it's "as if" they were born to them. There needs to be more training mandated for all adoption, there's needs to be serious reform on all aspects of it. I don't think though that you can every fully screen another family. That's why adoption really should be a last resort.

    3. 33 years ago it was believed that children wanted and needed two parents...... that money made it all better ..... and that white mother's were not capable of raising mixed children..... Social workers were trained to think in those terms. Reality is far different from this.

  8. I always marvel at how those most passionate about protecting abortion rights or ending the gray areas in assisted reproduction or those already born. Period.

    The best interests of the child? Are you then saying that these embryos are children or should be classified as such? And if so, you are still comfortable protecting abortion where no medical need is warranted, even late term with a viable fetus? An aborted fetus would one day become a child as well.

    Slippery slope indeed.

    I also just marvel at the nerve of worrying over this "Father's Rights" and how his interests should be protected above those of these embryos who may one day be sentient beings. Or may already be.....no one truly knows.

    I can speak from experience, that even not knowing my biological background or overseas Father, I'm still MIGHTY happy to be alive! I know this doesn't jive with your ideal adoptee commenter who professes they would rather have been dead than be adopted BUT most of us are mighty glad a Mother somewhere chose life.

    Should these embryos create a child who later learns her father wanted no part in their creation (AFTER the fact, I might add), yeah, that's a bitter pill.....but not more or less than many other hurdles in life. He is making a choice after the fact and their one day Mother will make a choice to bring these to full term and parent. Isn't that the choice so many other parents make? Do you honestly believe that couples deciding to try for a baby sit down and discuss what is best for the potential child they might create? Do they ask themselves if a summer birth would be better or if having one parent at home is best or gosh, will it bother them if there are so many siblings, etc.......nope. Sure, many plan and prioritize and do their best but NOT in the name of what's best for possible babies to come. They make a baby because they want one and wish to parent.

    Just my 2 cents.

    1. I am an adult adoptee, and my husband and I had discussions about everything you said. Why? Because I lived with such pain and uncertainty about myself that I did not wish that on my kids, and neither did my husband. No "Let's have a baby!" just for the selfish hell of it here. Some people *do* plan as carefully as possible for the kids.

      A different two cents

  9. I am dumfounded over the judge's ruling. It the woman wanted to be a mother and donor didn't want to be a father, then why couldn't she go to a sperm bank? It's so easy for some women to force a man into parenthood without him having a say because they know the courts will back them ( as in the case of paternity fraud). I think she wanted his sperm because she knows she can file and receive child support, whereas with a donor she wouldn't have that right.

    I am pro-choice, and all for equal rights for us, but some women abuse the system.

    1. I wonder who ended the relationship, Dunston or Szafranski.

  10. She cannot just go to a sperm bank and start over. Her treatments for cancer rendered her sterile. The embryos are her last chance at having a biologically related child.

    That said, I don't think she should proceed since the father is in court fighting against it. The situation does not bode well for any child. I know what it is like to be a child denied. I would not wish it on anyone; the pain is incredible.

    That this is an issue of contract, not family law, says it all.

  11. Not clear who ended the relationship. This is what the Chicago Tribune reported:

    Dunston "testified that she longed to have a biological child and asked Szafranski to provide his sperm so embryos could be frozen prior to her treatment, and he did so, despite neither of them thinking the relationship had long-term prospects. A co-parent agreement giving Dunston control of the embryos was never signed, though.

    The couple broke up in May 2010. Szafranski said he changed his mind about being a father after friends and a girlfriend reacted negatively, according to court documents."

  12. I am totally pro-life. These embryos should never have been created, in my opinion. That said, I don't think it is fair to force this man to be a father to children that he does not want. I know..that is not really rational. I also don't think they should be destroyed.

  13. Nope, too late. He can't change his mind now! This post makes me really uncomfortable. These are embryos and not children, may never be even if she ever does have any of them transferred. You can't consider the best interest of children who do not exist and if you start trying to give personhood to embryos you are undoing hundreds of years of the women's right movement! Anyone who considers themselves pro-choice can't have it both ways. The man here made a choice which he could have rescinded at any point before the fertilization occurred. They both had to do extensively medical testing, sign paperwork and wait for her to go through the hellacious process of shots and egg retrieval. He had abundant time to think things through and, of sound mind, he donated his sperm. Now he has a girlfriend who isn't keen on the idea and he wants them destroyed. No way! The woman in this story is a doctor so she can provide for her children without help from this jerk! She has been through enough at such a young age! I hope she gets the children she so desperately wants! Being rejected by your father isn't the worst thing that could ever happen to you! Having an abusive father who is always around is worst, IMO! I'd rather these children be born and be tremendously loved by their biological mother than see her have to adopt someone else's children. Adoption would be her only alternative if she didn't have these embryos. Bottom line, he's a sperm donor and that's as far as his rights should ever go!

    1. Oh right. The "these children will be loved enough by one parent" argument. Always popular, as well as "You could have been ABUSED! How about THAT?" How do you know people aren't abused, on top of being denied? One does not preclude the other.

      Adoption/"donation" should not be about providing "desperately wanted" children to people who demand them, no matter the psychological price to those children. If these particular embryos are implanted and make it, I wish them well, but their job is not to complete their mother and just forget that they have a father. What a sad preface to a life.

    2. Rain,

      Let's say the situation were reversed. He wants the embryos, but she changed her mind after the fact. Would she then be just an egg donor and that is as far as her rights would ever go?

    3. I was fine with your comment until you acted like being rejected by your father is no big deal. Yes, you're right, even if she transfers these to her uterus she may not be pregnant. We do have to be very careful about giving too many rights or personhood to embryoes that are not even sure to be viable in a womb much less outside the womb. And I agree that the process is long and he had ample time to change his mind prior to fertilization. I also see this as very similar to the abortion discussion. Allowing this man to decide now, after the legal papers he's already signed is a dangerous precedent. If he gets to change his mind now, then why doesn't a father get to force a woman to have an abortion.

      That said, this woman now has a situation where we KNOW the biological father doesn't want the children born. We KNOW that one day any children born from this process are going to have to deal with that. We KNOW that many donor conceived children are having the same types of questions that adoptees have, they're having the same identity questions and struggles that adoptees have. This woman should be thinking of that and considering all of that in making her decision. This is not a situation where a child already is alive even in utero. This is an embryo that may or may not be able to be a child if transfered. So it's important to think about the implications to the child that could be created if she continues. Just having love doesn't remove 1/2 of your DNA, it doesn't invalidate 1/2 of your biology just because the father isn't participating.

    4. @really? He acted in the capacity of a sperm donor. Sperm donors do not have the right to decide what happens to the embryos. If the roles were exactly reversed the story would read like this, a male doctor gets cancer and finds out the treatments will render him sterile. He asks his girlfriend if she will donate her eggs to be fertilized by his sperm. They both see no future for their relationship but she agrees to give him her eggs. They break up and later her new boyfriend doesn't like the idea that her ex has embryos and wants them destroyed.

      In that exact same reversed version I would feel exactly the same way. However, it would never happen because a man's sperm can be frozen very successfully for future use. The technology to equally successfully freeze a woman's eggs does not exist yet. The eggs are damaged and unusable more times than not. Therefore, this is more a woman's rights issue than it is a child's rights issue.

      @dmdezigns I never acted like it wasn't a big deal. Only that having a terrible father in your life is worse than not having one at all. I know because I still remember watching my father throw my 9 year old brother down stairs and kick him in the back while wearing steel toe boots, because he didn't mow the lawn fast enough. I remember what electric cords feel like being whipped across my bare thighs. There are worse things than not having a father! People may have some romantic idea of how much their missing out on by not having one of their parents around, but I never had a father in my life who loved me the way a father should. I left home at 16 and didn't talk to my father for many years. He realized later on in his life what an abusive parent he had been and reached out for forgiveness. We have a relationship now, but it's like good friends. I have to almost treat it as if the father I had as a child is a completely different person than the man I visit with now. If I think about it too much I can't be around him and it's the same for my brother. I remember when my brother was in his 20's he said, "He's an old man now and I take satisfaction in knowing I could hurt him now if I wanted to. He couldn't hurt me now." It's a pain that never leaves you. However, we did forgive him. This man may say he doesn't want those embryos to become children now, but as long as he is alive he could always change. I wouldn't have an abortion and I wouldn't have my embryos destroyed based solely on what a man says he wants before his children even exist.

    5. He did not donate the sperm anonymously--and he recognizes that if the children are born they will be his, and emotionally, he will be connected. I totally believe that since this was done when they were together, as a couple, and are no longer, he has the right not to bring her children into the world. Just as women have the right to control their bodies, so should he have the right to control--his sperm!

    6. Adoption would be her only alternative?

      Only if she must have a child at all costs, which is what a lot of adoption is about today. It is about providing a home to a child that needs one, not about satisfying the need of someone to have a child.

      These particular embryos should only be implanted ONLY if both parents are in agreement about creating a child.

      If the situation were reversed, there would be much support for the women "to control her own body," that is, eggs. The sperm is no different.

  14. Did you know because this has dragged on so long and she had been unable to use her embryos, she had a baby through anonymous donor embryo and donor sperm? At least these embryos would be born to their biological mother and know who their biological father is!

  15. Anon@5/23, 6:53

    Dunston can still have a bio-child and use a donor's sperm, so she can go to a sperm bank and "start over". I think, after reading Jane's post, that she wants to hold on to him by having his child. Think about it, if she really wanted a child it wouldn't matter whose sperm it was from.

    I feel for the poor guy.

    1. Read more carefully above. She had cancer and was treated. She is sterile. No more viable eggs, thus no bio child.

    2. But Rain Clair says she already has a child with anonymous sperm. Good for her, screw the child's need for identity.

  16. Anon@ 5/24, 3:22PM

    You're correct my mistake. However, I do stand by my original statement- I think she wants to hold on to the ex by having his child which is wrong. Meaning, her excuse can be the "desire to have a bio child" but why have a child by a man who doesn't want to be a father nor wants you or the child in his life?

    1. After all the court battles that have ensued, I can't imagine this woman has any desire to be in a relationship with her ex-BF, or that she believes that he would ever want that with her.

      I think she desperately wants to be a mother to a biological child, and this is her one and only opportunity.

    2. Ha! That's exactly what I was thinking. After everything he has put her through it's really unlikely she feels anything other than contempt for him. I'm sure if she could she'd go back in time and just go to the sperm bank!

  17. I'm uncomfortable with the thought lines from this post. It seems to be treading into a very tricky and murky area, legally speaking, when you are viewing a woman's, or a man's, reproductive rights and control over their own bodies.

    I often say to people when discussing these types of cases that what is morally right is not necessarily supported by a law, and what is morally wrong is not necessarily illegal. For instance, I am morally against abortion, but I am legally for the right of women to choose and hold control over their own body and reproduction. While I might be pro-life in moral beliefs, I recognize the importance of women to have the freedom to choose because without it, we are held victim to a male-dominated society that would prefer (as illustrated by laws made in the past year by several states) to restrict the control we women have over our own bodies.

    In this case, I see a man who is trying to control the reproductive rights of a woman. It concerns me to consider that a precedent might be set here on several fronts. First, that a man may determine whether embyos fertilized with his sperm be destroyed. This could be used to argue that a man may weigh in on whether a woman aborts or carries a child he has fathered. Again, while I morally believe a father should be allowed to weigh in, I do not support from a legal perspective a man being able to either force an abortion or force a woman to carry a pregnancy to term against her will.

    Second, I'm concerned by the idea of assigning "child's best interests" to fertilized embryos in a lab. They are not a child, they only have the potential to become a child, precisely the same as an embryo when a woman chooses abortion. Certainly, we do not argue "child's best interests" when supporting the right of a woman to have an abortion, so I cannot see the difference here. There is also no way to know what any potential child would want and if they would rather never be born knowing their father didn't want them or if they would be glad they were born. We cannot assign motivations and feelings to someone not in existence.

    This last is a tricky line for me. Consider people born out of the product of rape. Some might and have argued that no one would want to live life knowing they were conceived in that way, but the reality is that there are indeed individuals who lead happy and productive lives in spite of the negative circumstances surrounding their conception. No one can possibly begin to assume they know how a child or adult will feel if born to a mother who wanted them deeply but a father who did not. We can conjecture, but to base actual laws on that conjecture? That is dark and murky water indeed, and I would question any judge who actually ventured to do so.

    Morally, I agree that a parent/parents should consider the impact to their potential child if the pregnancy is a planned situation where such considerations can be evaluated. But I do not think law has a place in such a decision.

  18. Tiffany,
    If you'll read the post and my earlier comment more carefully, you'll see that I never suggested that we assign the "child's best interests" to fertilized embryos. What I said was that the laws governing assisted reproduction should be structured in some way to take into consideration the child's best interests IF the child is born. Laws which take the child's interests into account might include allowing the child to know the names of those whose DNA he carries. They might have a provision for requiring support by one parent or allowing visitation by one parent under some circumstances.

  19. Hi Jane,

    My comment was based around this comment placed under the heading "In Whose Best Interests?": "It's troubling that in these cases and many others involved assisted reproduction, the fate of human beings depends on the laws of contract. There is no a mention of "best interests of the child," hallowed words in laws governing adoption, child welfare, and custody disputes in divorce." The first case you presented has nothing to do with a child, but fertilized embryos. In the second case, there is a child, but I was concentrating my comments on a situation like the first where the legality is surrounding the embryos. There were also further comments made along the same lines.

    "We sympathize with Dunston's desire to be a mother but it makes us a uncomfortable to bring children into the world whose father fought repeated court battles to prevent them from being born." Morally, this is a discussion, but not legally. What I am saying is that the courts cannot use "best interests of a child" for a child not yet born. When you speak of laws about financial support or contact, these do not apply to this first case as the whole case is about the man not wanting the woman to be able to use the embryos.

    Perhaps the issue is combining completely different cases that are only tied together in that they involve fertility treatments and artificial insemination because I see completely different situations in the two cases? I can see your argument to alter laws for support and visitation; my understanding is that laws surrounding sperm/egg donation are stricter in some other countries than our own. Another case of us not keeping up with technology in terms of the law. But my comments that I made above I think still apply to the first situation you presented- the law has no place telling a woman that she cannot use embryos fertilized with the willing consent of a man who later changes his mind. Moral dilemma for the woman in regards to potential feelings of the potential child? Yes. Legal dilemma? No.

  20. Based on what we know about adoption, I think we should assume that having a connection to biological family is in the best interests of children, assuming that these individuals are loving, not abusive, etc. This is how the vast majority of adoptees and sperm donor children feel and we are hearing the same thing from egg donor kids as they come into adolescence. Biological connection is important. But that connection does not need to be a legal one. We have many important emotional connections in our lives that are not legal relationships.

    In our system, there can only be two parents. One can argue that there should be other legal categories that come with rights or responsibilities, but the court has to work with the legal system as it is and not as it should be.

    The group at fault, here, in my opinion, is the IVF clinic and the storage agency, who are the only gatekeepers. Their job, IMHO, is not to make as much money as possible but rather to use their expertise to benefit the people using their services. People break up. People get divorced. People disagree about what to do with left over embryos. People's feelings change. We know this happens and at an infertility clinic, it happens DAILY. Each person should have been asked to sign a binding legal document stating what would happen to the embryos in the event of divorce, breakup, disagreement, or death. No one should accept embryos for storage without such clarity. Period.

    Let's reverse the situation for a moment. Embryos are created, couple breaks up. Mother has no desire to have children, especially not with this particular man. Father is now infertile. Father sues to take ownership of the embryos so that he can hire a surrogate and have the children. Mother does not want father bringing her children into the world and raising them.

    Do those who side with the mother in this case now side with the father? How would you feel if a man you despised had the right to create your children and raise them with you having no responsibility but also no rights? I don't think there are many women who would say "well, his right to have his biological children clearly trumps my feelings on this. Who cares where my embryos go? I mean, it's just a biological child of mine. No big deal." Sorry, don't buy it.

    The father is not a sperm donor. That was never his role, he never signed a sperm donor contract and it's not fair to assign him a new role that he never consented to. He was an intended father and he intended to have children in a very specific context -- with this mother. I think we need to honor the original intentions of the parties, just as we do in other legal contracts. The mother in this case has no right to "downgrade" the father's intentions and make him into a sperm donor who has no legal connection to his biological children. If she wanted to exercise that option, she should have created embryos using a sperm donor or asked him to sign a sperm donor contract.

    She chose to create them in the context of a committed relationship in which IVF was used only due to illness. If she did not have cancer, this story would have continued with them either conceiving a baby born with two legal parents or not conceiving one. Exercising the sperm donor option post-facto creates a new reality that was never intended. As someone who has experienced infertility, I sympathize emotionally with the mother but I know I would never accept the situation reversed, so I have to come down for the father on this one.



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