The trial court properly awarded the divorced parties’ one remaining frozen embryo to the ex-husband, a split Michigan Court of Appeals has ruled.

Markiewicz v Markiewicz (Docket No. 363720) was on appeal for the second time. In the case, the parties had experienced fertility issues during their marriage. The plaintiff ultimately gave birth to four children. One child was conceived naturally and three children were conceived through in vitro fertilization (IVF) using the plaintiff’s sister’s egg and the defendant’s sperm. After the divorce, one cryogenically preserved (frozen) embryo remained.

The parties resolved all their issues in the divorce except for the disposition of the one frozen embryo. The Macomb County Circuit Court awarded the embryo to the defendant. The plaintiff appealed that decision and, in March 2022, the Court of Appeals adopted a new legal framework in frozen embryo cases that “blends” the “contractual approach” and the “balancing approach” to determine disposition. Because the Macomb County trial court did not have the benefit of this legal framework when it made its decision, the Court of Appeals reversed and remanded the case. “On remand, the trial court shall consider the applicable Sparks [v Sparks, 440 Mich 141 (1992)] factors,” the Court of Appeals said.

On remand, the trial court held an evidentiary hearing and relied on the new legal framework, as instructed by the Court of Appeals. The trial court again awarded the frozen embryo to the defendant, finding that awarding the embryo to the plaintiff would be “more” inequitable than awarding it to the defendant. The plaintiff appealed.

The Court of Appeals affirmed the trial court’s decision in 2-1 unpublished opinion.

The trial court “appreciated the special characteristic of the embryo to produce a human life,” the Court of Appeals noted. However, the appeals court agreed it would be more inequitable to let the plaintiff give birth to a child with her ex-husband’s DNA (against his wishes), as opposed to the inequity of prohibiting the plaintiff from giving birth to a child that does not share her DNA.

“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 [the husband] was inequitable,” the Court of Appeals wrote. Judge Mark J. Cavanagh and Judge Sima G. Patel joined the majority opinion.

Judge Michael J. Riordan dissented, emphasizing the parties had entered into an “Embryo Cryopreservation Agreement” that necessitated an outcome in the plaintiff’s favor. “I would reverse the trial court’s order to the contrary and remand to that court for entry of an order in favor of plaintiff,” he said. “Alternatively, I would vacate the trial court’s order and remand to that court for further proceedings to address plaintiff’s religious beliefs and the impact of Const 1963, art 1, § 28(1) on this case.”

Irrelevant Amendment

On appeal, the plaintiff argued the case should be remanded so the trial court could consider the effect of Const 1963, art 1, § 28, which was ratified by Michigan voters after the Macomb County trial court issued its ruling. That amendment says every individual “has a fundamental right to reproductive freedom.”

The Court of Appeals disagreed with the plaintiff. “The primary issue to resolve is whether § 28 has any effect on these proceedings,” the appeals court said. “Given [the plaintiff’s] failure to cite any authority supporting her position that § 28 may be applied retroactively to this dispute, that issue may be considered abandoned.”

Further, “we are not persuaded that § 28 has any effect on the outcome of these proceedings,” the Court of Appeals explained. “[The plaintiff] claims that § 28 vested both [parties] with fundamental rights, which must be considered by the trial court. Assuming such vested rights existed, it is manifestly clear that they would not lead to any different result. Significantly, the trial court did not disagree that either party had the right to make decisions relating to pregnancy or childbirth, and its decision did not infringe on how the parties could exercise any such rights. Rather, the dispute in this case involved the disposition of a frozen embryo, which was deemed marital property in which both parties had competing rights. Even if § 28 applied, the court still would be required to consider the competing views from [both parties], and decide whose ‘rights’ to the disposition of the embryo were to be vindicated and whose ‘rights’ were to be impaired.”

Moreover, the plaintiff’s argument that strict scrutiny would apply to impair any rights was inapplicable, the Court of Appeals said. “Strict scrutiny is only applicable when the state seeks to impair any constitutional rights. … In this case, the state is not attempting to take or curtail any action, which involves a private dispute between [the parties].”

Balancing Approach

Next, the Court of Appeals addressed the plaintiff’s arguments that the trial court erred by 1) improperly applying the appeals court’s first decision in Markiewicz and 2) awarding the embryo to the defendant.

First, the plaintiff claimed the trial court erred by finding there “was no valid agreement” between the parties. “The trial court clearly acknowledged that the parties had entered into a contract with the storage facility,” the Court of Appeals wrote. “Clearly, it was the parties’ intent at the time of the IVF process to implant embryos in [the plaintiff’s] uterus. They were married and trying to start or build a family. But that is not the controlling intent at issue here, and that expressed intent does not manifest what the parties intended to do with the embryos in the event of a divorce.”

The trial court “did not err by concluding that the contract, aside from allowing a court to decide what would happen to any embryos in the event of a divorce, did not specify how the court is to make that determination,” the Court of Appeals said. “And without any agreement regarding how a court should decide the disposition of an embryo in the event of a divorce, the trial court properly proceeded to address the various factors described in Markiewicz. To the extent [the plaintiff] claims that the existence of the agreement precludes going forward with the balancing test, that position is without merit. … The fact that there was a general agreement between the parties is not the question; the question is whether there was an agreement ‘addressing the disposition of the embryo’ under the present circumstances, i.e., in the event of a divorce. And in this instance, because the agreement merely deferred to a court’s determination, it cannot be considered an actual agreement regarding the embryo’s disposition. The trial court rightfully recognized that ‘there’s not a meaningful valid agreement as to disposition of the embryo.’ Thus, with no meaningful agreement pertaining to the disposition of the embryo, the trial court properly proceeded to perform the balancing test as prescribed by this Court in Markiewicz.”

Next, the plaintiff argued the trial court wrongly determined that, in order to take any type of action regarding the embryos while the parties were married, they would have to agree on that action.

“We disagree,” the Court of Appeal said, noting the trial court relied on the parties’ testimony in making its determination. “Thus, while not 100% certain, [the plaintiff] was under the impression that both she and [the defendant] generally needed to mutually agree on actions related to any embryos. [The defendant] testified that he had a similar understanding. [The plaintiff] on appeal argues that her (and necessarily [the defendant’s]) opinions are irrelevant because the answer to the court’s question is a matter of contract interpretation, which is a question of law. Although it seems clear from the agreement that the parties needed to mutually agree to start the IVF process, it is not clear from the language used in the various documents if one of the parties could unilaterally make decisions affecting the embryo.”

When viewing the agreement in its entirety, “the only reasonable interpretation is that it requires mutual consent, especially where [the plaintiff and the defendant] were both parties to the agreement,” the Court of Appeals said. “Therefore, the trial court did not err by concluding that one party could not unilaterally make certain decisions regarding the frozen embryos.”

In addition, the plaintiff claimed the trial court erroneously found that “most of the Sparks factors were either irrelevant or neutral,” the Court of Appeals said. “The Sparks factors that are to be considered when dividing marital property ‘whenever they are relevant’ include: (1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity.”

The plaintiff asserted that, when analyzing the Sparks factors, the trial court “failed to properly weigh that she has been paying for the storage of the embryo since the divorce and that she was ‘the overwhelming primary contributor’ to the embryo, ‘putting herself through the several different medical procedures,’” the Court of Appeals observed. “We disagree. … Although [the plaintiff] undoubtedly underwent many medical procedures, the embryo at issue was not created as a result of any of those procedures. The embryo was created by taking an egg from [the plaintiff’s] sister, which was then fertilized by sperm from [the defendant]. Although [the plaintiff] nobly went through various procedures during the entire IVF processes, those resulted in three children being born and were not directly related to the creation of the embryo at issue in this case.” Accordingly, “[w]e find that the trial court did not clearly err by finding that the Sparks factors generally, and specifically Factor (2), were neutral.”

In conclusion, the plaintiff argued the trial court erred by failing to consider her religious beliefs. “We disagree,” the Court of Appeals said. “[The plaintiff] did not present her religious beliefs during the evidentiary hearing. The trial court necessarily did not err by failing to consider evidence that was never presented. In fact, [the plaintiff] acknowledges on appeal that she only presented her religious views in her motion for reconsideration. Because she raised this issue for the first time in a motion for reconsideration, the argument is not preserved.”