The Michigan Supreme Court will hear arguments next month over who gets custody of a frozen embryo following a couple’s divorce.
David and Sarah Markiewicz had four children while they were married. Three were conceived via in-vitro fertilization using the husband’s sperm and the wife’s sister providing the eggs.
The final unresolved issue left from their 2020 divorce is possession of the final frozen embryo.
The Michigan Court of Appeals ruled 2-1 in December of 2023 that the frozen embryo would go to the ex-husband because he had the most direct biological connection. The court also rejected an argument that the embryo should go to Sarah Markiewicz under Michigan’s reproductive freedom amendment.
The dissenting opinion argued the ruling ignored a contractual agreement and should be sent back to a trial court to consider the contract in light of the state's reproductive freedom amendment.
Attorney Liisa Speaker, who chairs the Family Law Section of the State Bar of Michigan, told Michigan Public Radio that people often avoid tough conversations when planning pregnancies using assisted reproductive technologies.
“What if one of them dies before the embryo is implanted and what happens then? They need to be thinking about what happens in the event of a divorce,” she said. “If we have multiple embryos that haven’t been used, what are we going to do with them?”
Speaker said a Supreme Court decision could help set some clear guidance for judges to follow in disputes as IVF pregnancies continue to become more common.
