Last week, the Michigan Supreme Court held a hearing on a case involving a divorced couple who could not agree on what should happen to their remaining embryo.
The case in question involves Sarah and David Markiewicz, who turned to egg donation from Sarah’s sister and in-vitro fertilization (IVF) to have children. While they were married the couple managed to conceive four children, one naturally and three through IVF, but when the couple began divorce proceedings in 2020 – they were at odds over what should happen to their remaining embryo.
“The Michigan Supreme Court has actually never set its own test as to what should happen with embryos that are created during a marriage after the dissolution of that marriage,” said Bonsitu Kitaba, a deputy legal director at the American Civil Liberties Union of Michigan and co-author of an amicus brief filed in support of David Markiewicz’ interests.
The issue of who has the rights to the embryo first arrived in the Macomb County Circuit Court in the Fall of 2020. During the hearing, Sarah’s attorney claimed that it was her “last chance to have children.” However, David asserted he did not want another child and argued that the embryo belonged to him because of their shared DNA. The circuit court judge ultimately granted the rights of the embryo to David.
Sarah then appealed that decision, arguing that the court did not properly consider the parties’ rights to reproductive freedom under the recently adopted Proposal 3. She also argued that her religious beliefs in the case, which are that she believes the embryo is a human life, were not accounted for in the trial court's decision.
But the appeals court ruled that the constitutional amendment could not be applied as the hearing on the case occurred before the ballot measure was adopted and that Sarah did not bring up the issue of her religious beliefs in trial court, so it could not be considered in the appeals court. After five years of legal battles in the lower courts, the dispute between Sarah and David has now reached the state's highest court.
Infertility
When David and Sarah first were married in 2009 and after several failed attempts to conceive a child naturally, they turned to in-vitro fertilization, according to court filings. But following numerous failed IVF treatments, they asked Sarah's sister to donate her eggs so the future embryos the couple created with David's sperm would still have some genetic relation to Sarah. Using those eggs, the couple managed to create a total of four embryos. Three of the four were implanted into Sarah at two different times, resulting in the couple’s second child and later, a set of twins. The remaining embryo was then frozen through a process known as cryopreservation at a facility in Warren.
When the couple divorced in 2020, David and Sarah could not agree on who should have rights to their remaining embryo, so they turned to the courts for a final decision. In their initial agreement with the fertility clinic, the couple had stated that, in the event of a divorce, the disposition of any future embryos would be determined by a court order.
In the initial lower court proceedings, Sarah argued that she should receive the embryo because it likely was her “last chance to have children if she so chooses.”
On the other hand, David does not wish to have any more children with Sarah and argues that, as the person with the closest biological connection to the embryo, his rights should take precedence in the case. Even when Sarah has said she would absolve David from any financial and familial responsibilities if she were to implant the embryo and carry to full term.
In support of David, Kitaba says the ACLU supports the constitutional position stating that the individual who wishes to avoid genetic parenthood should have the authority to decide the fate of the embryo. In this case, David is the one who does not wish to have another child.
“[David] Does not want to parent another child in addition to the ones that he already has,” Kitaba said. “And so there should be a strong presumption in his favor, absent any other exceptional circumstances that would make the court go the other way.”
It would not be unusual if the court were to side in favor of David’s interest, but they should examine their implicit bias before they do, said Ben Carpenter, an associate Professor of Law at the University of St. Thomas School of Law. Carpenter’s scholarship on the effects of assisted reproductive technologies in estate planning and family law has been widely cited in Sarah’s arguments filed in court.
“In 18 of the first 20 cases, the court sided with the parties trying to prevent the use,” Carpenter said. “And in the great majority of those cases, it was the former husband or the man that was trying the use of the embryo.”
Many judges base their decisions on grounds of procreative freedom, asserting that no one should be forced to procreate against their will, he said. However, Carpenter believes this perspective raises some concerns.
“First, in these case, the men are not being forced to procreate,” Carpenter said. “They voluntarily donated their sperm, entered into this process precisely for the purpose of creating a child.”
While circumstances can change, like in the event of a divorce, the man, in this case, David, is not being forced to do anything.
“The reality of these cases, though, is that most couples, when they enter into the IVF process, are not thinking about this potential issue,” Carpenter said. “They're not discussing it, and they're certainly not contracting for what to do with the embryos in the event that they get divorced.”
Furthermore, Carpenter pointed out that when the courts make decisions rooted in procreative freedom, they often overlook the woman's concurrent interest in continuing a process of procreation that she has already initiated.
Conversely, Kitaba argued that if the embryo were awarded to Sarah, her intention would likely be to attempt to create another child. If this resulted in a pregnancy, it could impose unwanted parenthood on David, as he shares DNA with the child. On the other hand, if the embryo is awarded to David, it would not hinder Sarah’s desire to become a parent.
“Even though she is maybe genetically related in some way to this embryo,” Kitaba said. “It doesn't foreclose her possibility of becoming a parent again, using other means.”
Reproductive Rights
When examining this case through the lens of reproductive rights and issues, Carpenter noted that it does not easily fit into the traditional pro-choice versus pro-life framework.
“By giving voice to the investments that the women have made in the IVF process prior to implantation,” Carpenter said. “And respecting the commitments that these women are making going forward to the decades of raising children. Granting the embryos to these women only furthers their reproductive choice and their reproductive options.”
Kitaba doesn’t see it that way. She argues that it would be virtually impossible for Sarah to have a child from the remaining embryo without imposing parenthood on David, thereby violating his reproductive rights.
“If that embryo was implanted and a pregnancy resulted and a child resulted in every circumstance that would impose unwanted parenthood on David, the ex spouse,” Kitaba said.
In fact, court filings of the case support this, David has called the possibility of fathering a child without any connection other than genetic a “mind twist” and that's because he’s not that type of parent. He's chosen to pay more in child support than what is required for his other four children.
The Michigan Supreme Court is expected to rule in the case between the Markiewicz’ by the end of the year.
Background reading:
Michigan high court hears "marital property" dispute over embryo
Who gets a frozen embryo in a divorce? Michigan high court could decide.
Hear the full conversation with Bonsitu Kitaba and Ben Carpenter on the Stateside podcast.
