What Happens to Frozen Embryos in a Divorce?

Liquid nitrogen cryogenic tank in a laboratory - Frozen embryos divorce concept

Science is making it easier for same-sex couples and families struggling with infertility to have children. But Michigan’s family law statutes aren’t keeping up with the times. That can create problems for couples when the stress of failed conceptions, miscarriages, or other life issues push their marriages apart. There may not be a clear answer to what happens to frozen embryos in a divorce, or who, if anyone, has the right to use those embryos after the marriage ends.

Frozen Embryos: A New Form of Family Law

Over the last 50 years, reproductive scientists have been finding new and better ways to help couples conceive children. Would-be parents using alternative reproductive technologies (ART) including in-vitro fertilization (IVF) to start or grow their families include:

  • Same-sex couples conceiving with the help of a donor
  • Heterosexual couples delaying pregnancy for medical or educational reasons
  • Single women using a known or unknown sperm donor
  • Single men planning to have a child through a surrogate (surrogacy for compensation is illegal in Michigan, but some family members or close friends will volunteer to carry a child)
  • Women who struggle to conceive or carry a child to term due to medical conditions
  • Men with decreased sperm count who use a donor

At first, IVF involved harvesting dozens of eggs for fertilization. Today, that number has lowered to around ten. But few families use all their frozen embryos in attempts to conceive. This creates legal and moral questions about how cryogenically frozen embryos can be disposed of, and who they belong to when the parents’ marriage fails.

Family Law Attorney Lori A. Buiteweg recently spoke on the issue of Embryo Disposition along with Jennie Boldish Bryan of McShane & Bowie and Richard Roan of Warner Norcross + Judd in March 2022. But you don’t have to be a lawyer to understand how important it is to know what happens to frozen embryos in a divorce.

What Happens to Frozen Embryos in a Divorce?

The Michigan Child Custody Act does not explicitly cover embryos. There have only ever been three cases in which the Michigan Court of Appeals addressed a dispute over who controls the frozen embryos. In Stratford v Stratford, after attempts to conceive through IVF failed, former spouses argued over what to do with their one remaining embryo: donate it to another couple, or for medical research. The court refused to choose, ordering that the embryo would remain cryogenically frozen until the parties and the fertility clinic could come to an agreement. The court said that it did not have the authority to decide what happens to frozen embryos in a divorce action. This decision represents one of three approaches courts across the nation have taken in these actions. Recently, in the unpublished opinion of Markiewicz v Markiewicz, issued March 24, 2022, 2022 WL 883683, the Michigan Court of Appeals identified this approach as untenable. (More on that decision later.) Note that unpublished opinions are not binding precedent, so a trial judge may, but is not required to, follow the Court of Appeals’ decision.

What if One Parent Uses Frozen Embryos After a Marriage Ends?

In Karungji v Ejalu, unmarried parents sought to create an embryo after their relationship had ended so that the umbilical cord stem cells could be used to treat and cure their daughter’s sickle cell anemia. The trial court dismissed Ms. Karungji’s child support claims for the costs of IVF treatments, but the Court of Appeals reversed the decision. The case has been sent back to the trial court twice, but no final decision has yet been reached.

Are Frozen Embryos Children or Property?

Karungji v Ejalu demonstrates the key issue in cases involving frozen embryos: whether the embryos were persons, controlled by family law, or property controlled by the contract the parties signed with the IVF clinic. Other states tend to follow one of 3 patterns:

  • Pure contract
  • Contract with balancing interests
  • Pure balancing

The question is important because if an embryo is used to conceive a child after divorce the parent using the embryo could then pursue child support from their ex-spouse on the theory that he or she was the “natural parent” or biological parent of the child. Michigan’s Paternity Act and Revocation of Paternity Act both depend on genetic testing to determine whether an alleged father is the legal parent of the child. But in an embryo case, that paternity could be established even if the father no longer had any interest in having children at all.

What Contracts Have to Do with Embryo Disputes

Unlike traditional conception, every ART procedure involves hiring medical professionals to handle donation, fertilization, and implantation. Often, patients must sign IVF agreements before their treatments begin. ART may also involve known donor agreements with sperm or egg donors or surrogates. (Michigan is one of only three states that has no legally enforceable surrogacy options.) In states that resolve embryo disputes based on contract law, these agreements are treated as valid and enforceable, and control what happens to the embryo when everyone involved cannot agree.

When courts add in balancing interests, they generally consider whether the contract the parties signed anticipated what would happen to the frozen embryos in a divorce. If the language of the contract doesn’t address these issues, then the courts will weigh the parties’ interests against each other to decide whether embryos will be implanted, sold, donated, or disposed of. Where there is no written agreement, courts are left to decide embryo disputes solely by balancing the interests of the parties. In In re Marriage of Rooks, one Colorado court used the following factors:

  • The intended use of the embryo
  • The ability of the party seeking to preserve the embryo to have biological children through other means
  • The original reasons for undergoing IVF
  • The hardship on the party seeking to avoid parenthood
  • Past bad-faith attempts to use the embryos as leverage

However, the court refused to consider economic factors, the number of existing children, or whether the party seeking to use the embryo could adopt a child instead.

The Michigan Court of Appeals in Markiewicz v Markiewicz, adopted a blended approach of contractual principles and the parties’ interests. It said:

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.

That balancing will depend on many factors:

  • The reasons the parties used IVF treatment in the first place
  • The parties’ beliefs (religious or otherwise) as to the creation of an embryo, and whether that embryo is a human or property
  • Whether the party seeking procreation has other reasonable means of achieving parenthood if the embryos are destroyed
  • The possible financial and psychological consequences of unwanted parenthood on the party seeking destruction of the embryos
  • The possibility that the embryos could be used as leverage in a divorce
  • The cost to the parent seeking procreation of obtaining additional IVF services

The Markiewicz Court directed the trial judge to first consider whether there was a valid contract between the parties and apply the terms of that contract. If not, then the judge was directed to consider the normal property distribution factors, plus the additional factors described above.

Embryo disputes during and after divorce are on the cutting edge of Michigan family law. Because Markiewicz was an unpublished decision, it remains to be seen whether future Michigan courts will take a pure contract approach, or allow courts to balance would-be parents’ interests. Without clear guidance in the state’s statutes, it is up to spouses, parents, and their attorneys to make the case for embryo use, donation, or disposal on a case-by-case basis.

At NSSSB, our family law attorneys want to help you do what is best for your family and your children. We will help you review your situation and recommend strategies for family planning and embryo disputes during and after divorce. We can help you protect your rights as a parent, or not to become one against your will. Schedule a consultation to discuss your specific situation and get help protecting your right to decide if and when you have children.