Michigan judge tells divorced couple that their fight over embryo isn't "science fiction"

Author Ed Anderson

An embryo is the center of a legal fight between a divorced coupleWikimedia

Sarah and David Markiewicz have been fighting over an embryo in court for the last three years. Ever since their divorce was finalized in 2019, each of them has thought they were the rightful owner of the fertilized egg. 

The issue stems from Sarah's desire to have the egg implanted in her uterus. She told the court that she does not expect her ex-husband to be a part of the new child's life nor provide any sort of financial help for the baby. 

David thinks this is a bad idea. He would rather have the embryo discarded or donated to science. The Detroit Free Press reports that he stated that it goes against his morals to have a child out in the world that he doesn't have an emotional or financial connection. 

However, Sarah refuses to let the embryo be discarded. She feels that is the same as abortion, which goes against the religious belief she shared with her ex. In a statement to the Free Press, she said: "I'm just looking to keep together the family that was made in the first place, and not feel like I'm losing part of it..." 

David's counterpoint is that the pair can't get along, so why bring another life into an already contentious situation. He told the Free Press: "My big concern right now are the four children we have growing up with two parents who just can't get along," David Markiewicz said. "And now you want to add another baby to that chaos? That's insanity to me."

Macomb County Circuit Judge Matthew Switalski ruled in David's favor and has consistently said that this issue needs to be resolved. In his first ruling, he wrote: "It's not science fiction, but there's an embryo sitting there that cannot live on its own."

A judge has ruled that the embryo belongs to David MarkiewiczImage by Mohamed Hassan from Pixabay

At Issue 

Outside of the religious issue, which Sarah contends both parties agree on, the embryo was made with her sister's egg and David's sperm. 

Sarah faced some medical issues in her early 30s, including early menopause. That didn't deter her or David from wanting children. They asked Anna Bluj if she would donate an egg, so they could try and have children. She agreed, and the trio went forward with the procedure. 

Six months after she gave birth to their first daughter, Sarah learned she was pregnant again. After that, it was another three years before she was with child again; this time, she had twins. 

In the third pregnancy, there were three viable embryos. Still, they only used two to ensure one was not discarded or killed by mistake. During this time, Sarah and David signed an agreement explaining what was to happen with the embryo in case of one or both of their deaths or if the marriage ended in divorce. 

In 2019, Sarah filed for divorce, citing a breakdown in their relationship that could not be fixed. David was stunned by the move and told the Free Press that it was not something he wanted. He went on to say that his ex was the love of his life and that he believed she left him because of the amount of time he was working. 

By September 2020, the divorce was heading toward being finalized. Then the issue of the embryo came up. The judge ruled in David's favor, and the divorce was considered to be done. 

Sarah has appealed the judge's decision to the Court of Appeals twiceMichigan Court of Appeals

Appeal and Appeal Again

Sarah did not see the issue as being resolved. Her attorneys asked the judge to reconsider his position. He refused. So, they appealed to the Michigan Court of Appeals. They found success here, as the court found that the judge didn't consider the legislation and other factors in his decision. The decision was reversed and remanded back to Judge Switalski.

According to documents found on the Michigan Courts website, the Appeals Court opinion stated: "Sarah contends that an additional factor the court should have considered was the unique nature of a frozen human embryo," the appeals court wrote in its opinion. "Although there are no cases in Michigan directly addressing the nature of a frozen embryo, our legislature has indicated a public policy that includes special protections for nonviable embryos."

Once it was back on Judge Switalski's desk, he looked at the agreement again. He listened to arguments in September 2022. His opinion did not change this time, though he had harsher words for Sarah this time. He wrote: "Also relevant, it's her sister's egg but it's his semen. In other words, in a way in terms of it being marital property, I don't know how you get around saying it's more his than hers."

He also pointed out that the agreement they originally signed stated that the courts would decide who got the embryo in the event of divorce. Something that Sarah doesn't dispute. 

She does argue that there is another crucial line that the judge leaves out, though. "It is my/our intention to have these embryos transferred back to my uterus in a later cycle..." This, Sarah and her lawyers argue, is the most essential line. 

In their new motion to the Michigan Court of Appeals, they argue that the embryo being implanted into her uterus has always been part of the plan. But since the divorce, David wants to back out of it. 

The case is currently pending. 

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Ed Anderson is a true crime and gossip writer from Detroit, Michigan. Ed is the author of several true crime books, most recently Financing Doubt.

Rochester, MI

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