In a brief order, the justices declined to intervene, leaving in place lower court rulings that favored David’s wish to prevent the embryo’s implantation.

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Justice Brian Zahra, the court’s lone Republican nominee, issued a pointed explanation: matters involving the classification and fate of embryos should be handled by lawmakers, not the courts.

“Our Legislature is the appropriate body to decide the weighty policy questions presented not just in this case but also by the science of in vitro fertilization more generally,” Zahra wrote, adding “I call on the Legislature to address these issues and not abdicate its policy-making function to this court through inaction.”

Biology and divorce.

The Markiewiczes, who divorced in 2020, had preserved a fertilized embryo created using David’s sperm and an egg from Sarah’s sister. Sarah sought to use the embryo, citing it as her last chance at biological motherhood. She promised David wouldn’t have financial or parental obligations.

David, however, argued that fatherhood isn’t something you casually assign via post-divorce agreements. He requested the embryo either be destroyed or donated to science, saying he would feel obligated to the child if it were born.

A Macomb County judge – and later the Michigan Court of Appeals – ruled in David’s favor, emphasizing that the couple’s contract allowed the court to decide in case of a divorce.

Constitutional arguments fail to thaw the decision.

Sarah Markiewicz also attempted to invoke Michigan’s 2022 constitutional amendment protecting reproductive rights, suggesting it extended to fertility treatments – but the courts didn’t bite.

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As of now, Michigan lawmakers have not passed specific legislation directly addressing the legal status or disposition of frozen embryos, such as defining whether they are considered property, persons, or a special category. And with the courts stepping aside and lawmakers slow to act, Michigan remains in legal limbo when it comes to the fate of frozen embryos – leaving families like the Markiewiczes caught between science, emotion, and contracts.

Justice Zahra echoed this sentiment in his order when he said, “Broadly speaking, the primary issue is how the law should classify and treat human embryos, frozen or otherwise, which, at a minimum, have the potential to develop into autonomous human beings. This question implicates some of the most perplexing debates in society, invoking deep-seated and conflicting beliefs about morality, ethics, religion.”