Michigan’s Frozen Embryos at a Legal Crossroad

Recently, in the divorce action involving Markiewicz v. Markiewicz, the Michigan Supreme Court declined an opportunity to establish clear legal precedent on how to award possession of a frozen embryo that was created during the Markiewicz marriage.

As a family law practitioner who has assisted families with surrogacy and as a mom who has worked with a surrogate to have my own twins, this is both surprising and frustrating. With the exponential increase of infertility rates and Alternative Reproductive Technology (“ART”) becoming more widely used in family planning, Michigan’s infertility patients are sadly still without thorough parameters as they battle through an array of treatment options that may or may not be successful.

In many ways, hope is the only reliable medicine that currently exists for these individuals. Until a Michigan court or other Michigan law making body speaks clearly on all different aspects of ART, including how to define an embryo and how to address frozen embryos in a divorce case, Michigan’s infertility patients will continue to blindly address their medical diagnosis. While legalizing paid surrogacy is a good treatment option, Michigan has a long road to travel before it can overcome the significantly limited resources available to its infertility population.

Michigan, as one of the last states to legalize surrogacy, is still very much in its infancy when it comes to deciding issues related to in vitro fertilization (“IVF” a sub-category of ART).  Unlike California, a state with a long history of legalized surrogacy and other family planning alternatives, Michigan’s Alternative Reproduction and Surrogacy Parenting Act (“Surrogacy Act”) became law on April 1, 2025. Compared to California and other established states, Michigan’s new Surrogacy Act only touches on basic issues such as the qualifications of a surrogate and intended parents, requirements in the surrogacy contract, and the process for obtaining a judgment of parentage. While these are helpful guidelines for practitioners, MCL 722.1904 only references the effect of a subsequent change in marital status on the surrogacy agreement itself, nothing more.  Even though the Surrogacy Act addresses embryos and surrogacy, it fails to define “embryo” under Michigan law.  At some point, whether it be the legislature or court of law, a law-deciding body has to address this issue – sooner rather than later. 

As a practicing divorce attorney, the initial issue that struck me about the Markewicz divorce was how one would qualify an embryo as marital property when this definition also includes bank accounts, life insurance policy proceeds, and furniture? This is troubling and raises far more complicated issues than this author can fathom at one time. However, at some point, someone with law making authority has to be willing to take a leap of faith, on behalf of Michigan’s struggling infertility residents, and take a clear position on how to define an embryo. This is the only way we will begin to get the answers we deserve.   

As an individual who personally struggled with infertility, the last thing you want to think about is what comes next while undergoing treatment; especially considering the fact that infertility is already an extremely stressful diagnosis all on its own. However, addressing unused embryos at during the IVF process isn’t a new question. Personally, I think it would make sense to address this topic at the beginning IVF stages by way of an agreement between the parties. Any individual or couple who has gone through the IVF process, with remaining embryos, is faced with the decision of what to do with them: cryopreservation, donate to research, donate to an embryo adoption program, or discarding the embryo. Currently, in the State of Michigan, patients have the ability to make this choice based on personal beliefs; rather than being required to make a certain choice by law. While Michigan makes it legal to authorize the destruction of unused embryos, it's illegal to sell them and it is illegal to perform research on embryos for nontherapeutic purposes.  Meanwhile, other states have made the destruction of embryos a crime (i.e. Louisiana considers an IVF embryo to be a “judicial person,” which prohibits them from being “intentionally destroyed” in the state; and the Alabama Supreme Court issued a ruling declaring frozen embryos in that state to be “unborn children” for purposes of civil liability).

As for other states that have established laws for embryos in divorce cases, such examples include:

• Alaska: If both spouses wish to develop the embryo to birth, but only one provided gametes, the embryos are awarded to the spouse whose gametes were utilized.
• California: Custody disputes over embryos are addressed through contacts signed at fertility clinics. If no agreement, the court will decide based on wishes of both parties.
• Maryland: Courts have emphasized the importance of prior agreements between the parties and balanced interests when such agreements are unclear.
• Missouri: Courts will presume that the best interest of the embryo is to grant custody to either the egg or sperm donor who plans to bring the embryo to birth. Embryos are granted personhood.
• New Jersey: Embryos created through IVF are considered property and are therefore regulated by property law. This means couples can make agreements about the use and disposition of embryo in the event of a divorce. 

Clearly, there is wide array of opinions for the issues presented in the Markiewicz case, but the single problem for all infertility patients (and potential litigants) is the same: without a brighter light, it is difficult to navigate such a dark room.