COA Adopts ‘Blended’ Approach In Frozen Embryo Cases

In this divorce case, the Michigan Court of Appeals adopted a new legal framework that “blends” the “contractual approach” and the “balancing approach” to determine the disposition of a frozen embryo.

 “This blended approach requires courts to first look to see if there is a valid agreement between the parties addressing the disposition of the embryo,” the Court of Appeals said in Markiewicz v Markiewicz (Docket No. 355774). “In the absence of such an agreement, the court must then ‘balance the interests of the parties to determine disposition of the frozen pre-embryos.’”

Because the trial court did not have the benefit of this legal framework when it made its decision to award the embryo to the defendant, 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.”

Judges Michael F. Gadola and Michael J. Kelly signed onto the 11-page unpublished opinion.

Judge Stephen L. Borrello concurred in part and dissented in part. Because the plaintiff “was estopped from adopting a different argument on appeal than she adopted at trial, coupled with her inability to point out any factual or legal errors in the trial court’s ruling, … the trial court should be affirmed.”

Background

During their marriage, the parties financially contributed to the creation of a number of embryos using in vitro fertilization (IVF) techniques. The eggs were from the plaintiff’s sister and the sperm was from the defendant. Using some of the embryos, the plaintiff gave birth to four children during the marriage. When the plaintiff filed for divorce, the parties were able to resolve all issues, except for the disposition of one embryo that had been cryogenically preserved (frozen).

The issue of the frozen embryo was addressed at a September 2020 hearing in Macomb County Circuit Court. The plaintiff’s attorney represented that his client wanted to keep the frozen embryo, saying it was probably her “last chance to have children if she so chooses.” The plaintiff’s attorney offered to include language in the divorce judgment stating the defendant would not be responsible, financially or otherwise, if the plaintiff had a child from the embryo. The plaintiff’s attorney clarified that if the defendant did not want to be the child’s father, “we can very easily do that through a judgment.”

The defendant’s attorney responded by emphasizing that his client did not want another child. “[It would be] ridiculous for a child to be out there with my client’s sperm and you’re going to tell him that he’s not financially responsible when there’s another child running around that’s his. No, he does not want this child to be born, for a child to be born. They have four children. She’s in her 40s. To make another child at that time I just don’t even understand where the argument is coming from. … It’s not her egg.”

The trial court subsequently asked the parties whether the frozen embryo was marital property. The plaintiff’s attorney stated that “it is marital property.” The defendant’s attorney said, “I don’t know” and clarified that because it was created with his client’s sperm, but not the plaintiff’s egg, it was “more his than hers.”

The trial court ruled the frozen embryo was marital property because both parties had contributed financially to its creation and awarded the embryo to the defendant. The plaintiff filed a motion for reconsideration, arguing that she should be able to brief whether the frozen embryo was marital property. The plaintiff maintained that, after legal research and consultation with experts, she believed the embryo should not be considered marital property. The trial court denied her motion.

The plaintiff appealed.

Frozen Embryo Arguments

On appeal, the plaintiff argued - for the first time - that she believed a frozen embryo is a human life and not marital property.

“However, in the proceedings before the trial court, [the plaintiff] stated unequivocally that the embryo was marital property, and the trial court agreed,” the Court of Appeals said. “As a result, she is judicially estopped from challenging the determination that the frozen embryo is marital property. … Because [she] is judicially estopped from challenging the classification of a frozen embryo as property, we do not - and cannot - address whether, under Michigan law, frozen embryos constitute property subject to equitable distribution.”

The Court of Appeals then turned to the plaintiff’s argument that, even if a frozen embryo is marital property, the trial court wrongly awarding the embryo to the defendant. Relying on Sparks, the appeals court said the following factors should be considered “wherever they are relevant to the circumstances of the particular case”: 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.

“This list is not exhaustive,” the Court of Appeals said, pointing out the plaintiff asserted the trial court should have also considered “the unique nature” of a frozen embryo. “Although there are no cases in Michigan directly addressing the nature of a frozen embryo, our legislature has indicated a public policy that includes special protections for nonviable embryos. We reach this conclusion based on the legislature’s enactment of the fetal protection act in 1998. See MCL 750.90a et seq.”

According to the Court of Appeals, civil protection exists for embryos. “Specifically, MCL 600.2922a, provides that ‘[a] person who commits a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus.’ Although the criminal statutes do not extend to embryos that ‘exist outside a woman’s body, i.e., frozen embryos,’ … and although MCL 600.2922a expressly requires that the wrongful act be committed against a ‘pregnant individual,’ we conclude that as a matter of public policy, through the enactment of those statutes, the legislature has expressed that an embryo is something more than just human tissue.”

Similar to the courts in Davis [v Davis, 842 SW2d 588 (Tenn, 1992)], McQueen [v Gadberry, 507 SW3d 127 (Mo App, 2016)], and Jocelyn P [v Joshua P, 250 Md App 435 (2021)], “we agree that a frozen embryo deserves special respect because of its unique potential for human life,” the Court of Appeals said. “As a result, any disposition of a frozen embryo must start with the recognition that, even when a frozen embryo is treated as property, it nevertheless may one day develop into a born child.”

‘Blended Approach’

The Court of Appeals then devised a legal framework allowing for the equitable distribution of a frozen embryo “when, as in this case, it is being treated as property.” In so doing, the Court of Appeals noted that other states have recognized three approaches to determine the disposition of a frozen embryo in a divorce: 1) the contemporaneous mutual consent approach; 2) the contractual approach; and 3) the balancing approach.

Under the contemporaneous mutual consent approach, the embryos “must remain in storage until the parties agree to a disposition,” the Court of Appeals said, noting this approach is disfavored for various reasons. Meanwhile, the contractual approach recognizes the validity of a contract between the parties as governing the disposition of preserved embryos and is “embraced by the majority of jurisdictions that have addressed the issue.” And in the absence of such a contract, “courts commonly use the third approach, which balances the parties’ competing interests.”

Following the decision in Jocelyn P, “we hold that disputes that arise during a divorce regarding the disposition of a frozen embryo should be decided using a blend of the contractual approach and the balancing approach,” the Court of Appeals said. “This blended approach requires courts to first look to see if there is a valid agreement between the parties addressing the disposition of the embryo. In the absence of such an agreement, the court must then ‘balance the interests of the parties to determine disposition of the frozen pre-embryos.’”

According to the Court of Appeals, balancing the parties’ interests requires that many factors be considered, including: 1) the original reasons why the parties underwent IVF treatment (a party’s stated belief that an embryo is a human being, as opposed to mere property, is also relevant to this inquiry); 2) the parties’ positions related to the disposition of the embryo; 3) whether the party seeking procreation has any other reasonable means of achieving parenthood; 4) the implication of imposing unwanted parenthood on a party, including financial and psychological consequences; and 5) the possibility of a party’s bad faith and attempt to use the frozen embryo as leverage in the divorce.

“In light of our decision to adopt a blend between the contractual approach and the balancing approach, it is necessary to reverse and remand [this case] for further proceedings because the trial court did not have the benefit of this legal framework when it initially made its decision to award the embryo to [the defendant],” the Court of Appeals concluded. “On remand, the trial court shall consider the applicable Sparks factors. With regard to the additional relevant factor identified in this opinion, i.e., the special nature of the embryo, the trial court should first consider whether the disposition of the embryo is governed by a valid contract between the parties. If such a contract exists, the matter should be concluded in accord with the contractual terms that the parties agreed upon in that contract. If there is no contract, then the court must balance the interests of the parties using the framework stated in this opinion. In doing so, the trial court may again consider the facts - as argued below - that [the plaintiff] has already bore four children with [the defendant]; that the egg used to produce the embryo was not [the plaintiff’s], but her sister’s; and that [the plaintiff] offered to include language in the judgment of divorce indicating that [the defendant] would have no financial obligations related to any child born as a result of the embryo being implanted.”

As for the remaining Sparks factors, “additional factors, such as the ages and health of the parties, may also be relevant and should be addressed,” the Court of Appeals explained. “Financial considerations may also be considered. The cost of the IVF process is ascertainable. Therefore, it would be appropriate to consider the costs [the plaintiff] would incur were she to obtain another embryo using IVF techniques should the court again decide that it is equitable to award the existing embryo to [the defendant].”

On remand, the trial court will be required to “reopen the proofs” and “allow presentation of evidence related to the potential existence of a contract between the parties, and legal argument related to whether such a contract is valid,” the Court of Appeals held. “The court should also, if necessary, take testimony relevant to the balancing factors stated in this opinion.”