Michigan Supreme Court Punts Frozen Embryo Case to Legislature

Over the years, a few compelling frozen embryo cases have arisen in Michigan. One notable case arose in Oakland County; the other case from Macomb County was addressed this week by the Michigan Supreme Court but the High Court passed on the case.

This post takes a look at these cases that present novel questions about morality, paternity, family, marital property and the role of the legislation and the modern family court. The Assisted Reproduction and Surrogacy Parentage Act , (Public Act 24 of 2024), just last month legalized and now regulates surrogacy and assisted reproduction procedures. The Act repeals the 1988 Surrogate Parenting Act, which criminalized compensated surrogacy contracts, making Michigan the last state to decriminalize such agreements.

​This brand new legislation is the proverbial "tip of the iceburg" according to our Supreme Court. Aside the new legislation, our family courts have been struggling with IVF and other forms of assisted reproductive technology [ART] for years. We here at Clarkston Legal agree with Michigan Supreme Court Justice Brian Zahra that the Legislature needs to step up and legislate these important issues of our time.

We examine the latest cases to present these challenging issues to family court jurists below. Then we ask our readers' opinion about which camp should prevail in the much-needed legislation.

The Markiewicz Case in Macomb County

In Sarah Markiewicz vs David Markiewicz, the Macomb County Family Court awarded the last of the divorced couple's cryogenically preserved embryos to former husband David Markiewicz. Before their divorce, the married couple had four children; the first child through IVF; the second child naturally; and their third and fourth (twins) through IVF.

For the Markiewiczs, the IVF method was the same for all three of their children: ex-Husband's sperm was used to fertilize ex-Wife's sister's egg. Although Wife carried and delivered the children, she did not contribute any genetic material.

At the time of their divorce, one frozen embryo remained, fertilized by Husband's sperm. All other issues were resolved in their divorce except what to do with this last remaining embryo.

The case is compelling because it starkly frames the issue of which spouse's view should be afforded more weight: the right not to procreate, or the right to procreate? The family court judge in Markiewicz tipped the balance in favor of the Husband, who did not want to procreate.

The family court adhered to the stipulation of the parties that the cryogenically preserved embryo constituted marital property. Both parties agreed that the IVF contract they executed did not adequately identify the disposition of the cryogenically preserved embryo. The lower court concluded that the equities favored the Husband who had contributed genetic material to the embryo, but who did not want any additional children.

Family Court Decision Appealed

Wife appealed arguing to the Michigan Court of Appeals that she wanted the frozen embryo in case she wanted another, fifth child. The MCOA remanded the matter back to the Macomb family court to determine if a valid contract existed addressing disposition of the embryo and, if not, instructed the family court to balance the interests of the parties.

After conducting an evidentiary hearing and finding that the IVF contract did not properly address the disposition of the last embryo, the family court again ruled in Husband's favor, concluding the equities favored Husband due to his genetic contribution to the enbryo. Mom again appealed to the MCOA which affirmed the lower court in a 2-1 unpublished opinion. Here is a link to the majority opinion; here is a link to the dissent.

Determined to possess the last frozen embryo with her ex-Husband's DNA, Wife applied for leave to appeal to the Michigan Suprmeme Court. In scheduling oral argument on ex-Wife's application, the High Court directed the parties to address the following issues:

(1) whether the lower courts properly construed the parties’ agreement with the storage facility; (2) whether the lower courts properly balanced the equities in their application of the factors from Sparks v Sparks, 440 Mich 141 (1992), see Karungi v Ejalu, 501 Mich 1051 (2018) (McCormack, J., concurring); Jocelyn P v Joshua P, 250 A3d 373 (Md App, 2021); In re Marriage of Rooks, 429 P3d 579 (Colo, 2018); (3) whether Const 1963, art 1, § 28 applies retroactively; and (4), if so, its effect on the instant case.

Oral agruments were held in this case in Lansing on April 9, 2025; here is a link to the arguments.

On appeal, Wife agrued that the frozen embryo represented her last chance to complete her family. She asserted that fertility care was a fundamental right under Michigan's constitution pursuant to the Assisted Reproduction and Surrogacy Parentage Act. Wife further asserted that the High Court's order granting her applicationwas the last reasonable opportunity for her reproductive destiny could be realized.

Wife's lawyer also argued that a ruling against Wife would, "create an unjust presumption against the creation of new life and would also undermine the intent of voters to protect and empower those who struggle with infertility." The stated basis for Wife's legal assertions are that conception and procreation have already occurred therefore the balancing test should favor the party attempting to bring about new life, not the party seeking to prevent it [ex-Husband in this case].

For his part, Husband's lawyer bristled at the suggestion that Husband's decision not to procreate is selfish. He pushed back on the concept that a potential child bearing his DNA could be brought forth into this world but that he would not, under these circumstances, be the legal father. This, Husband asserted, would cause great emotional harm to such a child.

Husband focused on the psychological impact on the entire family: father, the existing four Markiewicz children, and the inchoate child. Husband focused on a fundamental constitutional right to privacy such that a person is free from unwarranted governmental intrusion into their decision to bear or beget a child. Ex-Husband's lawyer pointed out that a majority of jurisdictions held that the right not to procreate supercedes the right to procreate.

"Nothing to See Here" Says High Court

Incredibly, after two trips to the intermediate court of appeals, and after conducting oral arguments on ex-Wife's application for leave, the Supreme Court took a pass on this appeal. In his concurrence, our friend Justice Brian Zahra, wisely noted that the circumstances of the Markiewicz case were far too unique to establish a binding common law precedent for such important issues of reproductive rights.

Instead, Justice Zahra sent out a clarion call to the Legislature:

The facts in this matter are unique and do not present a good vehicle to address the weighty issues arising from in vitro fertilization and the human embryos created in the process. I therefore conclude that the Court should not intervene in this case as presented. I nonetheless write to highlight the significant policy questions implicated in this case that are properly and most appropriately resolved by our legislative branch of government. 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.

* * *

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.

We here at Clarkston Legal agree that common law has its limits. Basic reproductive rights in the IVF and/or the ART context should be codified by the Legislature in accord with voters' preferences.

A Case From Oakland County Received the Same High Court Treatment

Nearly 7-years ago, we blogged about a similar case from Oakland County involving IVF rights; here is a link to our post. In Karungi v Ejalu, Oakland County Family Court Judge Lisa Langton was faced with the same question of whether a frozen embryo was an inchoate person or a piece of property.

Like Markiewicz, the Karungi case wound its way through years of appeals, making it all the way to the Michigan Supreme Court only to have the application denied. Instead of calling for the legislature to take action, the Karungi Court called on the family court to take control

Also like Markiewicz, in denying the application, one Justice wrote separately to exhort the trial court to make the hard decision as to whether the embryo was property subject to contract principles, or an inchoate person subject to the laws of child custody.

Former Justice Bridget McCormack wrote separately to opine:

....that the trial court should not avoid the question argued by the parties: whether frozen embryos are persons subject to a custody determination. The answer to that question could prove dispositive regarding whether the contracts resolve this dispute. See Harvey v Harvey, 470 Mich 186, 194 (2004) (stating that “parties cannot stipulate to circumvent the authority of the circuit court in determining the custody of children”). And if the trial court concludes that embryos are not subject to a custody determination, it is still bound to make a determination about the proper legal disposition of those embryos, if not under contract law or child custody law. Under Const 1963, art 6, § 1, it has an obligation to exercise the judicial power to decide the dispute before it. See also MCL 600.605 (circuit courts “have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state”).

We here at Clarkston Legal believe that the Legislature needs to provide the family courts with some specific guidance on the complex issues of IVF and assisted reproductive technology. The Legislature reflects the intent of collective voters on these weighty policy questions. With the proper legislation in place, the courts will be much better equipped to deal with the tapestry of circumstances that litigants bring into court with each case.

What Do You Think?

The deep questions posed by frozen embryos have given pause both to our Legislature and our county family courts. What do you think about this case? Should the ex-Husband have prevailed or should the ex-Wife?

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