MSC Will Not Hear Frozen Embryo Case, Justice Urges Legislature To Take Action

The Michigan Supreme Court will not decide a dispute over a divorced couple’s cryogenically frozen embryo, saying it was “not persuaded” the justices should review the issues presented.

In December 2023, a Michigan Court of Appeals majority ruled in Markiewicz v Markiewicz that the trial court properly awarded the divorced parties’ one remaining frozen embryo to the defendant-ex-husband. The dissenting judge on the panel noted the parties had entered into an “Embryo Cryopreservation Agreement” that required judgment for the plaintiff-ex-wife.

The plaintiff appealed that decision to the Michigan Supreme Court (Docket No. 166782). The high court recently issued an order denying the application for leave to appeal, after hearing oral arguments.

Justice Brian K. Zahra wrote a concurrence, in which he emphasized the judiciary should not intervene because the “significant policy questions” involved are “most appropriately resolved by our legislative branch of government.”

Case Background

The plaintiff and the defendant had four children during their marriage. One child was conceived naturally and three children were conceived through in vitro fertilization (IVF) using an egg from the plaintiff’s sister and sperm from the defendant. When the parties were divorced, one cryogenically preserved (frozen) embryo remained. The only contentious issue in the divorce proceedings was the disposition of the one frozen embryo. The Macomb County Circuit Court awarded the embryo to the defendant. The plaintiff appealed that decision.

In March 2022, the Court of Appeals issued an opinion in Markiewicz v Markiewicz (Docket No. 355774) that set forth a new legal framework in frozen embryo cases. This new framework “blended” the “contractual approach” and the “balancing approach” to determine the disposition of the frozen embryo. Because the trial court did not have the benefit of this new legal framework, the Court of Appeals reversed and remanded the case. The Court of Appeals also instructed the trial court to consider the applicable factors in Sparks v Sparks, 440 Mich 141 (1992).

On remand, the trial court applied the new legal framework and again awarded the frozen embryo to the defendant. According to the trial court, awarding the embryo to the plaintiff would be “more inequitable” than awarding it to the defendant. The plaintiff appealed a second time.

The Court of Appeals affirmed the trial court’s decision in a 2-1 opinion. “Simply put, given the circumstances of this case, the outcome derived by the trial court was a principled decision, and we are not left with a firm conviction that awarding the embryo to [the husband] was inequitable,” Judge Mark J. Cavanagh and Judge Sima G. Patel said in the majority opinion.  

Judge Michael J. Riordan dissented, emphasizing the parties had entered into an agreement that required a ruling in the plaintiff’s favor.

Justice Zahra’s Concurrence

In his concurrence, Justice Zahra said the facts presented were “unique” and not a “good vehicle to address the weighty issues arising from in vitro fertilization and the human embryos created in the process.”

The justice said he wrote separately “to highlight the significant policy questions implicated in this case that are properly and most appropriately resolved by our legislative branch of government.”

According to Justice Zahra, “Broadly speaking, the primary issue is how the law should classify and treat human embryos, frozen or otherwise, which, at a minimum, have the potential to develop into autonomous human beings. This question implicates some of the most perplexing debates in society, invoking deep-seated and conflicting beliefs about morality, ethics, religion, human life, and personal autonomy.”

In divorce matters, “some courts have treated preserved embryos as a special category of marital property to be divided by contractual agreement or equitable division,” the justice explained. “Yet not all jurisdictions have accepted the premise that a human embryo should be treated as a form of property, special or otherwise. Ultimately, balancing the interests at stake in disputes like this one requires judgment calls that are beyond the judicial ken.”

The justice concluded, “Whether embryos should be treated as property or as persons with independent interests and whether control over embryos’ fates should be granted in divorce on the basis of a preexisting contract, an equitable decision of a court, child custody law, or some other method are matters best understood as legislative questions. Our Legislature is the appropriate body to decide the weighty policy questions presented not just in this case but also by the science of in vitro fertilization more generally. I call on the Legislature to address these issues and not abdicate its policymaking function to this Court through inaction.”