Lansing >> Michigan’s high court declined to intervene Friday in a dispute over a divorced couple’s frozen embryo with one justice saying the “weighty issues arising from in vitro fertilization” should instead be addressed by the state Legislature.

Before their divorce in 2020, Sarah and David Markiewicz — now both 47 years old — had chosen to preserve a fertilized embryo created through a cryogenic process.

A lawyer for Sarah Markiewicz argued that she should be able to implant the embryo, even after the divorce. But a lawyer for David Markiewicz contended that it was inappropriate to relegate him to some sort of uninterested sperm donor.

In an order Friday, the Michigan Supreme Court said it was not persuaded that “the question presented should be reviewed by this court.” The order featured a brief statement and explanation from Justice Brian Zahra.

“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. “I call on the Legislature to address these issues and not abdicate its policy-making function to this court through inaction.”

Zahra said the case raises questions about 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, human life and personal autonomy,” the justice wrote.

There are also questions about whether embryos should be treated as property or “as persons with independent interests” and about whether control over embryos’ fates should be granted in divorce on the basis of a preexisting contract, a court decision, child custody law or some other method, Zahra wrote.

Zahra is the lone Republican-nominated justice on the seven-member Michigan Supreme Court.

The court heard arguments in the Markiewicz v. Markiewicz case on April 9.

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.

However, 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.

A Macomb County Circuit Court judge previously ruled that 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 in a 2-1 ruling by the Michigan Court of Appeals, prompting the 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 appeals panel ruled in December 2023. “Although Sarah nobly went through various procedures during the entire IVF process, 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 Michigan Constitution. She invoked the constitutional amendment on the grounds that it protected fertility care.

— Beth LeBlanc contributed