The Michigan Supreme Court heard arguments Wednesday in a marital property case that could have broad implications for fertility treatments.
The case asks what should happen to a frozen embryo created while a now-divorced couple was still together. The embryo was created using the ex-husband’s sperm and an egg from the ex-wife’s sister.
Nick Curcio, a lawyer for the ex-wife, argued she should be able to keep the embryo in case she wants more kids. Her ex-husband does not want to have any more children.
Curcio based his argument largely on two main factors: what constitutes parenthood under the law, and the hardship his client would face if she were denied custody of the embryo.
On the legal definition of parenthood, Curcio referenced a state law passed last year that lays out three conditions for parenthood when surrogacy is involved.
“We believe that any genetic father qualifies as a donor until they go through one of the three specific pathways laid out in the statute to assume parentage,” Curcio said, arguing that the ex-husband in the case met none of them, and thus should be treated merely as a sperm donor.
The three pathways are through an agreement, by signing off on having one’s name listed on the birth certificate, and through court.
But attorney Trish Haas, who represents the ex-husband in the matter, said the arrangement would inevitably force her client into fatherhood again. The pair already share four kids.
“We can’t ignore the fact that there are four children and assume that father can now somehow be converted to a donor,” Haas said.
She encouraged justices to consider the psychological impact that would have on a potential fifth child.
The ex-wife’s attorney also asked the court to consider the hardships his client would face if she had to start the surrogacy process over again. That includes an estimated $15,000 cost.
“We believe that's materially unreasonable given the fact that the embryo already exists and there's evidence in the record that the cost for implanting that embryo would be largely covered by what's already been paid,” Curcio said.
Haas, however, said this situation wouldn’t fall under the extremes that courts have sometimes ruled in favor of the would-be mother for.
“I do think that the parent opposing parenthood should have a slight edge, except in the compelling circumstances like I've mentioned wherein a parent might lose their ability to procreate due to chemotherapy or another case,” Haas said.
Lower courts have ruled in favor of the ex-husband.
