The Michigan Supreme Court will hear arguments Wednesday between a divorced couple fighting over custody and disposition of the last vestige of their marriage and breakup – a frozen embryo.
The case is essentially about dividing property, but the circumstances are obviously unique, said attorney Liisa Speaker, chair of the Family Law Section of the State Bar of Michigan.
“In Michigan, embryos are treated as property and other states are treating embryos as property as well,” she told Michigan Public Radio. “But there’s also a recognition that this property is special property because it has the potential to become life.”
The case pits Sarah Marie Markiewicz against her ex-husband, David Markiewicz. The former couple has four children, three of whom were conceived via in-vitro fertilization using the then-husband’s sperm and her sister’s egg.
Sarah Markiewicz wants possession of the final frozen embryo as possibly her last chance to have more children if she decides she wants to do so. She said that is also important because the embryo is biologically connected to the former couple’s twins. She also wants the court to take into consideration the Michigan Reproductive Rights Amendment to the state constitution.
David Markiewicz said he does not want to have any more children with his ex-wife and argues his rights should take precedence as the person most biologically connected to the embryo. The Michigan Court of Appeals, in a divided decision, ruled with David Markiewicz and upheld a decision by the Macomb County Circuit Court.
“The trial court appreciated the special characteristic of the embryo to produce a human life, but ultimately sided with David because it would be more inequitable to have Sarah birth a child with David’s DNA against his wishes, as opposed to the inequity Sarah would suffer by being precluded from birthing a child that does not share her DNA,” according the unsigned majority 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 David was inequitable.”
But Court of Appeals Judge Michael Riordan, who split with the other two judges on the panel, said in his dissent that the agreement between the couple and the IVF clinic stated the intention was to use the frozen embryo to proceed with a pregnancy even if there was no firm plan in place.
“The contractual language between the parties clearly provides that plaintiff’s and defendant’s intention is to have the embryo at issue, as well as any other embryos, transferred to plaintiff’s uterus at some point in the future,” wrote Riordan. “The only manner by which this intention may be effectuated is an order in favor of plaintiff, who has expressed a desire to act in accordance with it and have the embryo placed in her uterus.”
The case predates Michigan’s new assisted reproduction and surrogate parenting law that took effect April 1. But, regardless, the law is silent on who has control of embryos once a couple splits or guidelines on how courts should decide these cases.
The law lifts Michigan’s ban on paid surrogate arrangements for carrying a pregnancy and establishes rights and responsibilities for all parties to a surrogacy agreement. “But that statute doesn’t tell the courts how to analyze the disposition of property when that property happens to be an embryo,” said Liisa Speaker, adding a decision could provide needed guidance. “This is going to come up a lot more in Michigan.”
