The Michigan Supreme Court will consider in the coming weeks whether to decide the fate of a divorced couple’s frozen embryo, including whether the final decision should be guided by laws governing marital property or if it falls under the reproductive rights protections of a constitutional amendment adopted by Michigan voters in 2022.

Nick Curcio, an attorney for Sarah Markiewicz, argued before justices Wednesday that Markiewicz should be able to implant the embryo, even after her divorce, arguing in part that her right to do so is protected under fertility rights enshrined in the 2022 Reproductive Freedom for All constitutional amendment.

“We think that’s appropriate where Michigan has recognized this constitutional right to fertility care,” Curcio said.

But Trish Haas, an attorney for David Markiewicz, argued the Supreme Court should not upset past court precedent that has largely sided with parties seeking to avoid procreation.

“Imposing unwanted parenthood on a parent is a serious consideration that should not be taken lightly,” Haas said, arguing David Markiewicz should not be relegated to some sort of uninterested sperm donor.

But Curcio argued the couple’s competing procreation rights are not in dispute at this point since the embryo has already been fertilized. Additionally, he noted, the right to abort or not abort has historically been extended to gestational parents such as Sarah Markiewicz.

“The procreation has already occurred in these cases,” Curcio said. “Conception has already occurred.”

Sarah and David Markiewicz were married in 2009 and had four children, three of whom were conceived through an in vitro fertilization that used Sarah’s sister’s eggs and David’s sperm. The couple chose to cryogenically preserve the last fertilized embryo created through that process.

The couple were divorced in 2020, which launched a battle in court over the fate of the last embryo. He resides in Shelby Township while she lives in Rochester Hills.

Sarah Markiewicz, who is postmenopausal, wanted to preserve the right to implant the embryo, arguing it was likely her last chance to have a child if she chose to do so. She has said she would not require her ex-husband to contribute monetarily or parentally to the child’s upbringing. David Markiewicz wanted the embryo either donated to science or destroyed because he did not want another child born from his DNA and would feel obligated to help raise the child if he or she were born.

The couple’s agreement with the IVF clinic indicated that, in the event of divorce, the future of any frozen embryos would be determined by court order.

The Macomb County Circuit Court ruled the embryo was marital property and, because David Markiewicz was the only one to contribute biologically to the process, the embryo was “more his than hers.” The decision was upheld on appeal by the Michigan Court of Appeals, prompting an appeal to the Supreme Court.

“The embryo was created by taking an egg from Sarah’s sister, which was then fertilized by sperm from David,” the appellate panel ruled in December 2023. “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.”

In her appeal, Sarah Markiewicz attempted to invoke protections under a constitutional amendment adopted by Michigan voters in 2022 that enshrined the right to abortion and other reproductive functions in the state constitution. She invoked the constitutional amendment on the grounds that it protected fertility care.

But the Court of Appeals panel in 2023 found the constitutional amendment could not be applied retroactively to a hearing that took place before the amendment was adopted. Even if it could, the panel wrote in December 2023, “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.”

Sarah Markiewicz also attempted on appeal to argue that her religious beliefs indicate the embryo is a human life, but the Court of Appeals found she did not present that argument earlier in trial court and could not raise it in appeal.

In Wednesday’s Supreme Court arguments, six of seven justices participated. Justice Elizabeth Clement did not participate since she is set to resign from the bench on April 30.

Justices had several questions about how the constitutional amendment and past case law related to IVF disputes would apply.

Justice Elizabeth Welch observed that case law has largely sided with the party wishing to avoid procreation.

Justice Brian Zahra questioned which factors the court should weigh more heavily, such as an individual’s ability to have a child through other means.

Chief Justice Megan Cavanagh questioned whether the father would be considered just a donor under the interpretation posited by Sarah Markiewicz and whether the intent related to the embryo should be measured at the time of the creation of the embryo or at the time of implantation.

The justices eventually will decide whether the case should continue in the high court by granting or denying Sarah Markiewicz leave to appeal the lower court decision.