Frozen Embryos and Divorce

As couples wait until later in life to get married and have children, the use of In Vitro Fertilization (IVF) is becoming more common than in years past.   A question arises about what happens to these embryos after the parties decide they no longer wish to remain married.

State and Federal law in this area is evolving. Currently, under Michigan, law embryos are considered to be personal property. While there is no definitive answer regarding how human embryos are treated in the case of a divorce, some guidance can be found in divorce matter heard out of the 16th Circuit Court in Macomb County: Markiewicz v Markiewicz. 2019-0326-DM.

In this case, the parents married in 2009 and had four children during the marriage. This couple, like many, faced fertility issues. Their first child was conceived through IVF technology using wife’s sister’s egg and David’s genetic material. As is common in IVF, the parties had multiple embryos available to implant in the event the initial implantation of the embryos did not result in a viable fetus.

When a couple undergoes IVF treatment they execute a standard contract addressing the Cryopreservation, Storage and Disposition of these embryos. Many of these contracts address what happens in the event of a divorce. In this particular case, the contract left the disposition of the embryos to a court of competent jurisdiction.

The parties filed for divorce in 2019 in Macomb County. While all other issues in their marriage were resolved, the matter of the disposition of the leftover embryos that the parties created during their marriage proceeded to a hearing. The husband argued that he no longer wanted additional children with his genetic material. The wife argued, on the other hand, that the embryos were marital property and should be awarded to her.

Here are the three ways a family court could analyze this issue:

1.      The Contemporaneous Mutual Consent Approach - Under this approach, the embryos must remain in storage until the parties agree on their disposition. In the event that the parties cannot agree, the embryos shall remain in cryogenic storage forever.  This approach is generally viewed as untenable.  In Re Marrie of Rooks 429 O3d 579 (Colo, 2018), the rationale is simply that if the parties cannot agree to the embryo’s disposition at the time of divorce, it is unreasonable to believe that the parties will ever be able to reach an agreement. The embryos would remain in storage in perpetuity.

2.      The Contractual Approach - Under this approach, it recognizes that the parties sign a contract that specifically pertains to the disposition of those embryos. This is the approach that the majority of jurisdictions utilize if there is an agreement as to how the embryos are disposed of in the event of a divorce proceeding.

3.      Balance of the Parties Competing Interests - Ultimately, if the IVF contract does not address the disposition of embryos,  the court looks at how they will balance the parties’ competing interests.  This approach, used Jocelyn P v Joshua P, 250 Md App 435, focuses on factors including (1) The reason that the parties underwent IVF treatment (2) The parties’ positions as it pertains to disposition of the embryo (3) Whether the party seeking to create another child would have any reasonable likelihood of having another child if the embryos were disposed of (4) What are the implications of imposing an unwanted parenthood on the party seeking to destroy that embryo?

The trial court rejected the mutual consent approach due to the inherent impracticality of maintaining the status quo until a time would come that the parties would reach some sort of agreement after their divorce.  Since the parties’ IVF contract did not address disposition of the embryos, the court could not utilize the contractual approach. Instead, the Trial Court utilized a balancing approach The trial court ruled that the embryos were marital property and initially awarded the embryos to the husband.

The wife appealed the lower court’s decision on a variety of arguments. One on them being that the court violated her Michigan Constitutional rights under Const 1963 art 1 Sec 28, which guarantees the right to reproductive freedom. The court ultimately rejected this argument.

The court took into consideration the framework that the Trial Court undertook in its initial ruling. The Appellate Court looked to the approach that other states took when deciding how to deal with frozen embryos pursuant to a divorce action.

The matter was remanded for the court to consider the factors in the Joceyln case. The Court ultimately held an additional evidentiary hearing on these limited issues after initially awarding the embryo to Mr. Markiewicz. When considering its ruling, the Court heard testimony limited to the parties themselves.

Mr. Markiewicz testified that he no longer wanted to be a father and wanted to destroy the embryo. Notably, Markiewicz testified about the impact of imposing an unwanted parenthood on him. He testified that he would be compelled to having a parental role if he fathered a biological child against his will.

The court also heard testimony from Ms. Markiewicz that this embryo was her last chance to be a parent one more time. The trial court ultimately awarded the embryo to Mr. Markiewicz again on remand to the Trial Court after further hearing consistent with the directives of the Court of Appeals.

The trial court ultimately came to the same decision and awarded the embryo to Mr. Markiewicz after further proceeding.  While the area of reproductive rights is evolving this case does give some limited guidance in the event that the parties IVF contract is silent or ambiguous as to disposition.

We will continue to monitor this case from Macomb County Family Court, just as we have done over the decades in other IVF cases from Oakland County and other jurisdictions.

Here is a link to our recent post on new legislation in Michigan in the area of assisted reproduction. Here is a link to a similar case from Oakland County. Here is a link to a famous frozen embryo case from California.

If you have questions about artificial reproductive technology or other custody issues, call our office to schedule a free consultation.