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What Happens to Cryopreserved Embryos After A Divorce?

In happier times, the Stratfords, Jude along with also also Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane’s eggs of which had been fertilized by Jude’s sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the today-divorced couple realized they had forgotten to address their frozen embryo within the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized along with also also frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded of which Jude held a “superior interest” within the embryo, along with also also promulgated a thoroughly-researched opinion along with also also order on This specific ground-breaking topic of which has no precedent in Michigan’s statutory or common law.

Judge Brown ruled of which: “[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple.”  Jayane appealed Brown’s ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished therefore non-binding per curiam decision, holding of which the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, along with also also further held of which the family court order was too vague relative to Father’s right/duty to donate the fertilized egg to another “willing couple”.

The appellate court was particularly troubled by the lack of a contract between the divorced parties along with also also the fertility clinic.  Addressing the family court’s creation of duties to a non-party, the MCOA stated:

Aside through the permissive nature of the order, the order imposed upon the clinic several obligations of which the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic can be able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate of which the clinic can be willing or able to accept the order’s apparent restriction of which the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, can be currently paying for any of the clinic’s costs arising through cryogenic preservation until a “willing couple” can be available for adoption.  We are further left to assume through This specific record of which there can be preservation in fact, viability, along with also also, non-abandonment of the embryo.  Moreoever, within the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic can be willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford‘s circumstances with an earlier “zygote” case through 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court “custody” dispute, along which has a companion “breach of contract” cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors along with also also the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff’s claims or, within the Stratford case, the lower court’s rationale.

Nor did the Stratford panel endorse the lower court’s “balance of interests test”, ruling of which such was within the purview of the legislature along with also also not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings within the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, along with also also various other pre-embryonic cells.

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What Happens to Cryopreserved Embryos After A Divorce?

Frozen Embrio.jpg
Frozen Embrio.jpg

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