20231207_C363720_59_363720D.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SARAH MARIE MARKIEWICZ, UNPUBLISHED
December 7, 2023
Plaintiff-Appellant,
v No. 363720
Macomb Circuit Court
DAVID RANDAL MARKIEWICZ, LC No. 2019-003236-DM
Defendant-Appellee.
Before: CAVANAGH, P.J., and RIORDAN and PATEL, JJ.
PER CURIAM.
In this postjudgment divorce proceeding, plaintiff, Sarah Markiewicz, appeals as of right
the trial court’s order awarding the parties’ cryogenically-preserved embryo to defendant, David
Markiewicz.1 We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties married in 2009, and had four children during their marriage.2 Because the
couple experienced fertility issues, their first child was conceived through an in vitro fertilization
(IVF) process using Sarah’s sister’s egg and David’s sperm. The second child was conceived
naturally. And the third and fourth children (twins) were conceived through IVF, again using
Sarah’s sister’s egg and David’s sperm. During the IVF process with the twins, the parties had
1
This case returns to this Court after our remand in Markiewicz v Markiewicz, unpublished per
curiam opinion of the Court of Appeals, issued March 24, 2022 (Docket No. 355774).
2
When the judgment of divorce was finalized in 2020, the oldest child was eight years old, the
next child was seven years old, and a pair of twins were four years old.
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three embryos at their disposal. They chose to proceed with implanting two of them in Sarah and
cryogenically preserved the last one.3 The two they chose were the most viable of the three.
In 2019, Sarah filed for divorce. In October 2020, the parties were able to resolve all issues,
except for the disposition of the remaining frozen embryo, and entered into a consent judgment of
divorce. 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.” David argued that he
simply did not want another child, and he did not want another child to be born from his DNA.
Markiewicz v Markiewicz, unpublished per curiam opinion of the Court of Appeals, issued March
24, 2022 (Docket No. 355774), p 2. During those proceedings, Sarah’s counsel unequivocally
asserted that the embryo was “marital property.” Id. David’s counsel was not sure that the embryo
was marital property because, as between the two parties, only David had contributed biologically
to the embryo, making it “more his than hers.” The trial court agreed with Sarah and ruled that
the embryo was marital property. But after evaluating the equities, the court awarded the embryo
to David.
Sarah appealed the trial court’s decision to this Court. In pertinent part, this Court rejected
her argument that the trial court erred by categorizing the embryo as marital property. This Court
found that Sarah was “judicially estopped from challenging the classification of a frozen embryo
as property” because she had “unequivocally and successfully argued that the embryo was marital
property” in the lower court proceedings. Id. at 4. Because the embryo was marital property, this
Court stated that the Sparks4 factors must be considered in dividing the marital property. Id. at 5.
Additionally, this Court determined “that a frozen embryo deserves special respect because of its
unique potential for human life. 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.” Id. at 8.
This Court recognized that other states generally use one of three different approaches to
decide how the disposition of frozen embryos are to be undertaken after a divorce: the
contemporaneous mutual consent approach, the contractual approach, and the balancing approach.
Id. This Court summarized the different approaches as follows:
Under the contemporaneous mutual consent approach, the pre-embryos must
remain in storage until the parties agree to a disposition. Bilbao v Goodwin, 217
A3d 977, 985 (Conn, 2019); In re Marriage of Witten, 672 NW2d 768, 777-778
(Iowa 2003). If they cannot agree, then the status quo is maintained, and “the pre-
embryos remain in storage indefinitely.” Bilbao, 217 A3d at 985. The contractual
approach provides that a pre-existing agreement between the parties regarding the
disposition of preserved pre-embryos is “presumed valid and enforceable.” See,
e.g., id. at 984, 992 (determining that the parties had an enforceable agreement);
Kass v Kass, 91 NY2d 554; 673 NYS2d 350; 696 NE2d 174, 179 (1998) (holding
3
Cryopreservation is a freezing process. After the embryo is frozen, it is maintained in frozen
storage.
4
Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).
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that the parties’ agreement controlled). The balancing approach requires a circuit
court to weigh the parties’ respective interests in the pre-embryos. Bilbao, 217 A3d
at 985.
The exceedingly rare mutual consent approach is disfavored. See, e.g.,
Jocelyn P v Joshua P, 250 Md App 435; 250 A3d 373, 405 (2021); In re Marriage
of Rooks, 429 P3d 579, 592 (Colo, 2018); Reber v Reiss, 42 A3d 1131, 1136 (Pa
Super Ct, 2012). But see Witten, 672 NW2d at 783 (using this approach); cf.
McQueen, 507 SW3d at 145-147 (affirming award of joint ownership to both of the
spouses using the balancing approach). Most jurisdictions that have considered the
approach have held it to be impractical and unworkable. See, e.g., Jocelyn P, 250
A3d at 405; Rooks, 429 P3d at 592; Reber, 42 A3d at 1136. As the Colorado
Supreme Court persuasively explained, “[i]t is . . . unrealistic to think that parties
who cannot reach agreement on a topic so emotionally charged will somehow reach
resolution after a divorce is finalized.” Rooks, 429 P3d at 592.
In contrast, the contractual approach, which recognizes the validity of a
contract between the parties as governing the disposition of preserved pre-embryos,
is embraced by the majority of jurisdictions that have addressed the issue. See
Jocelyn P, 250 A3d at 381; Bilbao, 217 A3d at 986, 992; Szafranski v Dunston, 393
Ill Dec 604; 34 NE3d 1132, 1147 (Ill App Ct, 2015); In re Marriage of Dahl &
Angle, 222 Or App 572; 194 P3d 834, 840 (2008); Roman v Roman, 193 SW3d 40,
48 (Tex App, 2006); Kass, 673 NYS2d 350; 696 NE2d at 180; Davis v Davis, 842
SW2d 588, 598 (Tenn, 1992), petition to rehear granted in part, No. 34, 1992 WL
341632 (Tenn, 1992) (per curiam). But see Witten, 672 NW2d at 781 (rejecting
this approach); AZ v BZ, 431 Mass 150; 725 NE2d 1051, 1057 (2000) (noting that
it would not uphold an agreement between the parties if it “would compel one donor
to become a parent against his or her will”).
In the absence of such an agreement through contract, courts commonly use
the third approach, which balances the parties’ competing interests. See, e.g.,
Jocelyn P, 250 A3d at 380; Rooks, 429 P3d at 593-594; Davis, 842 SW2d at 603-
604. [Markiewicz, unpub op at 8-9, quoting Jessee v Jessee, 74 Va App 40, 52-53;
866 SE2d 46 (2021).]
The Markiewicz Court rejected the contemporaneous mutual consent approach because it
is “inherently impractical.” Markiewicz, unpub op at 9. Instead, this Court adopted a blended
approach that “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.’ ” Id.,quoting Jocelyn P, 250 Md App at 479. This Court recognized that the balancing of the parties’
interests will require consideration of many factors, including (1) “the original reasons that the
parties underwent IVF treatment,” (2) “the parties’ positions related to the disposition of the
embryo,” (3) “whether the party seeking procreation would have any other reasonable means of
achieving parenthood were the embryos at issue to be destroyed,” (4) as “to the party seeking to
destroy an embryo, it is appropriate to consider the implications of imposing unwanted parenthood
on that party, including possible financial and psychological consequences of doing so,” and (5)
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the presence of any “party’s bad faith and attempt to use the frozen pre-embryos as leverage in the
divorce proceeding.” Markiewicz, unpub op at 9-10 (cleaned up).
Because the trial court rendered its original decision without “the benefit of this legal
framework,” this Court vacated the trial court’s decision and remanded for it to perform the proper
analysis. Id. at 10-11. Specifically, this Court directed that
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 Sarah has already
bore four children with David; that the egg used to produce the embryo was not
Sarah’s, but her sister’s; and that Sarah offered to include language in the judgment
of divorce indicating that David would have no financial obligations related to any
child born as a result of the embryo being implanted. With regard to the remaining
Sparks factors, additional factors, such as the ages and health of the parties, may
also be relevant and should be addressed. Financial considerations may also be
considered. The cost of the IVF process is ascertainable. Therefore, it would be
appropriate to consider the costs Sarah 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 David. [Id.]
On remand, the trial court held an evidentiary hearing at which only Sarah and David
testified. The parties stipulated to the admission of, among other things, their agreement with the
cryopreservation storage facility, wherein the parties agreed that (1) in the event of the death of
one of them, any remaining embryos would be transferred to the surviving party as sole owner; (2)
in the event of the death of both parties, any remaining embryos would be given to Sarah’s sister,
who was the donor of the egg; and (3) in the event of divorce, the disposition of any frozen embryos
would be “[d]etermined by the applicable Judgment of Divorce or other court order.”
At the time of the hearing, Sarah was 44 years old and was postmenopausal. The parties
agreed that the cost of a full cycle of IVF is approximately $15,000. Sarah testified that she and
David initially embarked on IVF treatment because of infertility issues. She stated that she would
have the last embryo implanted in her if it was awarded to her. If she had such a child, she would
not seek any financial support from David and would agree to waive any obligations on his part.
Sarah acknowledged that if she were not awarded the embryo, she could get a donor egg and sperm
from other people. However, she maintained that this embryo represented her last opportunity to
have a child that is “closest” genetically to the couple’s twins. Sarah testified that she currently is
working part time and that after daily expenses, “[t]here’s not that much extra.” But she noted that
she is “making it through” and “hopefully” would be going to full-time employment in the next
couple of months. She testified that, if she were awarded the embryo, she would not have it
implanted until she was employed full-time. Notably, no evidence was introduced regarding
Sarah’s religious views.
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David testified that although he was more of the breadwinner while the parties were
married, the parties nonetheless equally contributed to the household. David stated that he does
not want any more biological children, especially with Sarah now that they are divorced. He
maintained that he wants the embryo because it is his genetic property, not Sarah’s. And if the
embryo was awarded to him, he would donate it to science or have it discarded. David explained
that if Sarah were awarded the embryo and she had a child with it, he would suffer mental anguish
knowing he had a biological child to whom he would have no access or rights. David reiterated
that if Sarah desired to have more children, nothing was preventing her from accomplishing that
through obtaining other donor eggs, including possibly from her sister.5
The trial court accepted, without deciding, that Sarah could waive child support. The court
also noted that it was settled that the embryo was marital property, but that it was to be given
special consideration in light of the nature of the property. The court found that the parties’
Embryo Cryopreservation Agreement did not control the outcome in this case because it simply
allowed a court to decide in the event of a divorce.
The trial court therefore balanced the interests of the parties. For the “normal property
factors,” the court dispensed with most of them as not relevant or neutral, but found that Sarah’s
age,6 the past relations and conduct of the parties, and general principles of equity were relevant.
The court noted that the original reason for why the parties underwent IVF treatment was to address
their infertility issues and to have a family. Regarding the parties’ current positions related to the
disposition of the embryo, the court recognized that David wanted to avoid procreation and that
Sarah wanted to preserve her ability to potentially have a child in the future. Regarding whether
there were any alternate means of achieving parenthood, the court indicated that the testimony
indicated that Sarah could do that.
The trial court also considered the implications of imposing unwanted parenthood on
David, noting that David indicated he would not feel right having a biological child without having
a parental role. Regarding whether there was any bad faith by any party to use the frozen embryo
as leverage in the divorce proceedings, the court found that there was none. When balancing the
interests of the parties, the court noted that the embryo was made using Sarah’s sister’s egg and
David’s sperm. Consequently, the court found that there was no escaping the logical conclusion
that the embryo was “more his than hers.” Additionally, because Sarah had other options if she
wanted to have more children, that factor weighed in favor of David. The court added that the fact
that Sarah already had four children was irrelevant and did not weigh against her.
5
Sarah was of the opinion that her sister was now too old to donate eggs because “[u]sually they
[presumably, the doctors] recommend” the donor to be 25 years of age or younger. However,
there was no expert testimony or other evidence introduced establishing whether Sarah’s or
David’s opinion was more accurate. But Sarah’s testimony was couched as describing a preference
that was “usual” and a “recommendation,” which by its terms would not be exact or controlling.
6
The court noted that Sarah’s age and the fact that she was postmenopausal was relevant because
she could not naturally conceive children.
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In the final analysis, the court determined that, based on these facts, awarding the embryo
to Sarah would be more inequitable to David, compared to the inequity Sarah would suffer if the
embryo were awarded to David.
Sarah moved for reconsideration, arguing that the trial court did not properly consider the
parties’ Embryo Cryopreservation Agreement, the parties’ religious beliefs, and David’s ability to
have the frozen embryo carried by a surrogate. The trial court denied the motion. Sarah now
appeals.7
II. EFFECT OF CONSTITUTIONAL AMENDMENT
Sarah first argues that a remand is necessary to allow the trial court to consider the
ramifications of Const 1963, art 1, § 28, which was ratified by the voters of this state after the trial
court rendered its decision. We disagree.8
The trial court held an evidentiary hearing on September 28, 2022, and rendered its
decision on October 5, 2022, which was effectuated in an order entered on October 7, 2022. On
November 8, 2022, the people of the state of Michigan approved amending our Constitution by
adding, in part, the following provision:
(1) Every individual has a fundamental right to reproductive freedom,
which entails the right to make and effectuate decisions about all matters relating
to pregnancy, including but not limited to prenatal care, childbirth, postpartum care,
7
This Court granted a stay pending appeal. Markiewicz v Markiewicz, unpublished order of the
Court of Appeals, entered January 4, 2023 (Docket No. 363720).
8
Generally, a party must raise an issue in the lower court for it to be preserved for appellate review.
Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). There is no dispute
that Sarah never raised this issue in the trial court because the Constitutional amendment at issue
was not approved by the voters until November 2022, and did not become effective until December
2022, both of which occurred after the trial court rendered its initial decision and its decision
denying Sarah’s motion for reconsideration. Thus, the issue typically would be considered
unpreserved, which would waive any review. Tolas Oil & Gas Exploration Co v Bach Servs &
Mfg, LLC, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359090); slip op at 5.
However, because it was impossible for Sarah to have raised this issue before the trial court
rendered its decision, we exercise our discretion to overlook the strict preservation requirements.
“[T]his Court may overlook preservation requirements if the failure to consider the issue would
result in manifest injustice, if consideration is necessary for a proper determination of the case, or
if the issue involves a question of law and the facts necessary for its resolution have been
presented[.]” Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421(2006). Whether the Constitutional amendment, which was passed after the trial court made its
decision, has any effect or bearing in this case is a question of law, and any facts necessary for that
determination have been presented.
-6-
contraception, sterilization, abortion care, miscarriage management, and infertility
care.
An individual’s right to reproductive freedom shall not be denied, burdened,
nor infringed upon unless justified by a compelling state interest achieved by the
least restrictive means.
* * *
(2) The state shall not discriminate in the protection or enforcement of this
fundamental right. [Const 1963, art 1, § 28.]
Although approved in the November 2022 general election, this Constitutional amendment was
not effective until December 24, 2022.
The primary issue to resolve is whether § 28 has any effect on these proceedings. The first
aspect to consider is the impact of the December 24, 2022 effective date. Although § 28 did not
become effective until more than two months after the trial court decided this matter, Sarah,
without citing any authority, asserts that because it became effective “during the life of the appeal,”
it must be considered. Even in reply to David’s argument that § 28 is not applicable to this case
because it did not exist when the trial court made its decision, Sarah cites no authority for
essentially giving retroactive effect to § 28. Instead, she merely contends that § 28 vested the
people of Michigan with these rights and the trial court should consider those rights. But see
People v Gornbein, 407 Mich 330, 334; 285 NW2d 41 (1979) (“As a general rule, constitutional
amendments operate prospectively and not retroactively.”). Given Sarah’s failure to cite any
authority supporting her position that § 28 may be applied retroactively to this dispute, that issue
may be considered abandoned. See Johnson v Johnson, 329 Mich App 110, 126; 940 NW2d 807(2019).
In any event, we are not persuaded that § 28 has any effect on the outcome of these
proceedings. Sarah claims that § 28 vested both her and David 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 Sarah and David, and decide whose “rights” to the disposition of the
embryo were to be vindicated and whose “rights” were to be impaired.
Further, Sarah’s argument that strict scrutiny would apply to impair any rights is not
applicable in this case. Strict scrutiny is only applicable when the state seeks to impair any
constitutional rights. See Barrow v City of Detroit Election Comm, 301 Mich App 404, 420; 836
NW2d 498 (2013) (“Under a strict scrutiny analysis, the government may not infringe upon a
fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state
interest.”) (emphasis added). In this case, the state is not attempting to take or curtail any action,
which involves a private dispute between Sarah and David. Because the parties divorced, the court
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necessarily was required to decide, under equitable principles, how the marital property, including
the frozen embryo, was to be divided between the two of them. Attributing “rights” to divorced
parties would not change a court’s analysis.9 When faced with competing and diametrically
opposed interests, a court necessarily will have to balance the parties’ competing interests, which
is the process this Court outlined and ordered the trial court to follow. Markiewicz, unpub op at
9-11. Accordingly, even assuming that § 28 had any application in this case, we fail to see how
remanding for the trial court to consider these rights would yield any different result.
III. TRIAL COURT’S FINDINGS AND DECISION TO AWARD EMBRYO TO DAVID
Sarah argues that the trial court erred in its application of this Court’s decision in
Markiewicz, and by awarding the embryo to David. We disagree.
This Court reviews the trial court’s factual findings for clear error. Sparks, 440 Mich at
151. A reviewing court is to then decide if, in light of those facts, the trial court’s division of
property was fair and equitable. Id. at 151-152. That dispositional ruling is to be affirmed unless
this Court is left with a firm conviction that the property division was inequitable. Id. at 152. But
the proper interpretation of a contract is a question of law that this Court reviews de novo. Reed v
Reed, 265 Mich App 131, 141; 693 NW2d 825 (2005).
In Markiewicz, unpub op at 9, this Court held 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. This blended approach requires court 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.” [Citations omitted.10]
Sarah first argues that the trial court erred by concluding that there “was no valid
agreement.” Sarah implies that the court found that there was no contract at all (countering that
9
As an example, it is well established that parents have the constitutional right “to make decisions
concerning the care, custody, and control of their children.” In re Sanders, 495 Mich 394, 409;
852 NW2d 524 (2014); see also In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993); In re
VanDalen, 293 Mich App 120, 132; 809 NW2d 412 (2011). Despite these constitutional rights,
courts regularly “impair” the parents’ rights by dividing the custody of the parties’ children
between the parties after a divorce, without undertaking any constitutional analysis, let alone strict
scrutiny. See, e.g., Thames v Thames, 191 Mich App 299, 305; 477 NW2d 496 (1991) (stating
that custody disputes in a divorce are to be resolved in the child’s best interests).
10
See also Markiewicz, unpub op at 10 (“[T]he 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 contact, then the court must balance the interests of the parties
using the framework stated in this opinion.”)
-8-
“there was indeed a contract in the present case”), but that contention is not supported by the
record. The trial court clearly acknowledged that the parties had entered into a contract with the
storage facility. Additionally, the court reasoned:
Now, was there a valid agreement between the parties regarding the
disposition of the embryo[?] Well, it depends on what you mean by that. They
agree[d] to enter a process. They [chose] which of three embryos to prioritize,
because the other two were a better bet. Does that mean this one is non-viable[?]
It doesn’t mean that but the profile was not as good as the other two. Still
potentially viable. Again, at the time is there an agreement[?] Well, there’s an
agreement to keep it in the game so to speak, to keep it viable, to kick the can down
the road. So there’s not an agreement at the time that it should either be used or not
used. It’s just a punt at the time. I think it is significant that while married while
they’re going through the process, . . . no positive step can be taken without both
of them signing on to it. So it certainly can’t be said that they had agreed to go
forward, that’s clear. Now it’s I guess just as clear, well, they hadn’t agreed to get
rid of it in the event of the divorce. The bottom line agreement is if a divorce,
which neither were contemplating at the time, the court decides. So I guess the
long and short of it has to be there’s not a meaningful valid agreement as to
disposition of the embryo.
Sarah primarily relies on the following language in a preamble section of the parties’
agreement with the storage facility in support of her argument that the parties intended that the
embryo would be returned to her:
I/we agree to elect to cryopreserve all viable embryo(s) not transferred that
are created during an IVF cycle. The process of cryopreservation will be performed
in the laboratory of Michigan Center IVF, PLLC. The cryopreserved embryo(s)
will be transferred to the long term facility of Fertility Storage, Inc (FSI)[.] It is
my/our intention to have these embryos transferred back to my uterus in a later
cycle. [Emphasis added.]
Clearly, it was the parties’ intent at the time of the IVF process to implant embryos in
Sarah’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 very next section of the agreement
is entitled “Embryo Disposition” and provides the answer. That section lists several scenarios: (1)
“[i]n the event of the death of 1 partner,” the parties agreed to “[t]ransfer [the] embryos to the
surviving partner as sole owner[;]” (2) “[i]n the event of the death of both partners,” the parties
agreed to appoint Sarah’s sister “to be the sole owner of [the] embryos[;]” and, (3) “[i]n the event
of a divorce,” the parties agreed that disposition of the embryos would be “[d]etermined by the
applicable Judgment of Divorce or other court order.”
The agreement clearly contemplates that in the event of a divorce, a court, either through a
judgment of divorce or through some other order, is to decide the proper disposition of any
remaining, viable embryos. To the extent there is tension or conflict in the overriding intention to
use and implant the embryos and this intention to have a court decide the disposition of any embryo
-9-
in the event of a divorce, specific clauses in contracts prevail over more general terms. DeFrain v
State Farm Mut Auto Ins Co, 491 Mich 359, 367 n 22; 817 NW2d 504 (2012); see also 11
Williston, Contracts (4th ed), § 32:10, pp 739-740. Accordingly, the only pertinent portion of the
contract is the portion providing what the parties agreed would happen in the specific event of a
divorce. To somehow give effect to the parties’ overarching intent that was contemplated while
they were married and trying to build a family would render nugatory the section on embryo
disposition in the event of a divorce. Courts are to “give effect to every word, phrase, and clause
in a contract and avoid an interpretation that would render any part of the contract surplusage or
nugatory.” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003).
We find that 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. 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 Sarah claims that the existence
of the agreement precludes going forward with the balancing test, that position is without merit.
This Court directed: “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.’ ” Markiewicz, unpub op at 9 (citations omitted). 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.
Sarah next argues that the trial court erred by determining that to undertake any type of
action with regard to the embryos while the parties were married, they would have to agree on that
action. The trial court relied on parties’ testimony in making its determination. The court
questioned Sarah on this topic:
THE COURT: Is it your understanding or assumption that to go forward
assuming you’re still married, you both have to be on board?
THE WITNESS: Yes.
THE COURT: Okay. Otherwise, they would not assist you if both were not
on board? If you don’t know, that’s fine.
THE WITNESS: I’ve never, I’ve never been presented so I can’t hundred
percent --
THE COURT: Okay. That’s fine.
-10-
Thus, while not 100% certain, Sarah was under the impression that both she and David generally
needed to mutually agree on actions related to any embryos. David testified that he had a similar
understanding.
Sarah on appeal argues that her (and necessarily David’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,11 it is not clear from the language used in the various documents if one of the parties
could unilaterally make decisions affecting the embryo. The document shows that the parties
agreed to store all viable embryos. But immediately after that section, the agreement states:
1. At any time you may change your decision in regards to keeping the
cryopreserved embryos, you have the following options:
a. Anonymously donate embryos for a recipient couple to achieve
pregnancy.
b. Cell culture and degeneration: embryos will be thawed and kept under
cell culture conditions until growth cease and the embryo degenerates. Embryos
will then be disposed of according to professional ethical standards.
c. Transfer embryos to another IVF program that I/we have designated and
requested.
d. Donate embryos to an embryo donation center which I/we select.
e. Donate embryos for training of laboratory personnel[.]
Notably, the agreement does not clarify who the “you” is in the phrase “[a]t any time you
may change your decision.” (Emphasis added.) More specifically, the agreement does not directly
address whether the term “you” is to be read as singular or plural, such that the mutual consent of
both parties is required or whether only one of the parties can effectuate a change. But viewed as
a whole, the only reasonable interpretation is that it requires mutual consent, especially where
Sarah and David were both parties to the agreement. For instance, if one of the parties wanted to
keep the embryo in storage and the other party wanted it disposed, it would be impossible for the
storage facility to satisfy both requests. Therefore, although the contract says that “you may
change your decision in regards to keeping the cryopreserved embryos,” because Sarah and David
were both parties to the agreement and because of the impossibility in satisfying disparate requests,
the “you” should be understood as meaning the plural “you,” meaning Sarah and David
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The admitted exhibit has many different documents that for the most part contain the approvals
of both Sarah and David. The notable exceptions include the storage facility only requiring
David’s authorization to have his cryopreserved semen thawed and disposed of, the Michigan
Department of Community Health only requiring Sarah’s consent for her to be tested for HIV, and
the IVF facility only requiring Sarah’s consent for the use of fertility drugs.
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collectively. Therefore, the trial court did not err by concluding that one party could not
unilaterally make certain decisions regarding the frozen embryos.
Sarah further generally avers that the trial court erred when it found that most of the Sparks
factors were either irrelevant or neutral. 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.
[Sparks, 440 Mich at 159-160.]
However, these factors are not exclusive; “[t]here may even be additional factors that are relevant
to a particular case.” Id. at 160.
Sarah contends that, within these Sparks factors, the 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.” We disagree. First, the court never found that Sarah paid for the storage of
the embryo. The only evidence on this topic was David’s testimony in which he said that the
storage costs were approximately $600 or $700 a year, which he denied paying since the divorce.
He therefore “assumed” that Sarah had been making the payments. While that may be a logical
conclusion, it cannot be discounted that someone else, like Sarah’s sister who contributed the egg,
was paying for it. Even if Sarah had been paying for the storage of the embryo, however, that
would not be particularly significant in light of other factors such as the potential birth of a child
and the significant ramifications arising from that birth.
Sarah also contends that the trial court failed to give weight to the fact that she “was the
primary contributor” to the embryo, “putting herself through the several different medical
procedures.” Although Sarah 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 Sarah’s sister, which was then fertilized by sperm from David. Although Sarah 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.
We find that the trial court did not clearly err by finding that the Sparks factors generally,
and specifically Factor (2), were neutral.
Sarah next argues that the trial court made other errors when considering the other
balancing factors identified by this Court in Markiewicz. Specifically, Sarah contends that while
it was proper for the court to consider that only David contributed genetically to the embryo, the
court failed to consider that Sarah contributed to the embryo in terms of procedures, costs, and
family lineage (with the egg being from her sister). We disagree. The court implicitly recognized
this when it noted that Sarah’s sister contributed the egg, which became the embryo. However,
the court also recognized that between the two parties, only David contributed genetically to the
embryo. The court further noted that Sarah was not foreclosed from having more children through
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other egg donors. Although the court did not opine on whether she could still utilize eggs from
her sister, the record does not indicate that would not be possible.
Sarah also claims that the trial court “dismissed” the fact that she offered to absolve David
from any financial obligations related to a child born from the embryo. Contrary to Sarah’s
assertion, the court plainly recognized that Sarah offered to do so, but the court sided with David
in the overall balancing.
The trial court appreciated the special characteristic of the embryo to produce a human life,
but ultimately sided with David because it would be more inequitable to have Sarah birth a child
with David’s DNA against his wishes, as opposed to the inequity Sarah would suffer by being
precluded from birthing 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 David was inequitable. Sparks, 440 Mich at
152.
Sarah also argues that the trial court erred by failing to consider her religious beliefs that
the embryo is a human life. We disagree. Sarah 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, Sarah 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. See Dep’t of Environmental Quality v Morley, 314
Mich App 306, 316; 885 NW2d 892 (2015) (citation omitted), where this Court concluded that
“[b]ecause [this issue was raised] for the first time in a motion for reconsideration, the argument
is not preserved.” We will generally decline to address an unpreserved issue unless the failure to
do so would result in manifest injustice, if the issue involves a question of law and the facts
necessary for its resolution have been presented, or resolving the issue is necessary to properly
determine the case. Miller v Mich Dep’t of Corrections, __ Mich App __, __; __ NW2d __, (2022)
(Docket No. 356430); slip op at 7. Our Supreme Court has cautioned that this discretion should
be exercised sparingly and only in exceptional circumstances. Napier v Jacobs, 429 Mich 222,
233-234, 414 NW2d 862 (1987). No such exceptional circumstances exist here. Sarah had an
opportunity to present evidence of her religious beliefs at the evidentiary hearing, yet failed to do
so. We therefore consider this issue waived.
IV. CHALLENGE TO THE JANUARY 2023 ORDER
Sarah further argues that the trial court erred by entering the January 2023 order in two
respects. She first claims that, pursuant to MCR 7.208(A),12 the order is void because it
12
MCR 7.208(A) provides, in pertinent part:
After a claim of appeal is filed or leave to appeal is granted, the trial court
or tribunal may not set aside or amend the judgment or order appealed from except
(1) by order of the Court of Appeals,
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impermissibly modified the October 2022 order that already had been appealed to this Court. She
also asserts that the trial court erred by not considering the parties’ rights to reproductive freedom
under the recently adopted Constitutional amendment, Const 1963, art 1, § 28, which was in effect
at the time that the January 2023 order was entered.
“A court is, at all times, required to question sua sponte its own jurisdiction.” Tyrell v Univ
of Mich, 335 Mich App 254, 260; 966 NW2d 219 (2020), overruled on other grounds Christie v
Wayne State Univ, ___ Mich ___; ___ NW2d ___ (2023) (Docket No. 162706); see also Adams v
Adams (On Reconsideration), 276 Mich App 704, 709; 742 NW2d 399 (2007).
This Court lacks jurisdiction to address this particular issue. The order was entered in
January 2023, which was after she filed her December 7, 2022 claim of appeal from the October
2022 final order awarding the embryo to David. “ ‘[A] party claiming an appeal of right from a
final order is free to raise issues on appeal related to prior orders.’ ” Green v Ziegelman, 282 Mich
App 292, 301 n 6; 767 NW2d 660 (2009) (citation omitted; emphasis added; alteration in original).
But an appeal of a final order “does not bring before the reviewing court any subsequent orders.”
Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193, 197; 452 NW2d 471 (1989). Therefore,
we are without jurisdiction to consider Sarah’s claims of error pertaining to the January 2023 order
and decline to address her arguments.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Sima G. Patel
(2) by stipulation of the parties,
(3) after a decision on the merits in an action in which a preliminary
injunction was granted, or
(4) as otherwise provided by law.
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