An interesting case from the Oakland County Family Court poses the question: is a fertilized yet frozen human embryo property or a person?

Oakland County Family Court Judge Lisa Langton has been assigned the task of deciding this question. One couple on her custody docket cannot agree on the disposition of a group of frozen embryos.

The couple, Gloria Karungi and Ron Ejalu, contracted with an in vitro fertilization clinic whereby 10 of the couple's embryos were frozen from their genetic materials. According to the contract, the frozen embryos are characterized as the joint property of the parties; any disputes between the tissue donors and the clinic are to be settled through arbitration; the contract is silent as to disputes between the donors.

Unfortunately, the parties to the embryo contract have a daughter with sickle cell disease and Mom and Dad are no longer a couple. Mother believes that if she has another child with Father's DNA, using a frozen embryo, genetic material from that child may be able to help or cure her daughter.

Father will not agree with Mother's request to implant one of the embryos to beget a second child. So the matter was brought to the family court where Mother sought a legal ruling on the "custody" of the embryos. 

Judge Langton ruled that she only had jurisdiction over the couple's daughter and limited her decisions in the case to custody, parenting time and child support relative to the daughter. In dismissing the embryo dispute, she based her ruling on a case-code selected by the parties when Mother initially filed the entire matter as a child support case.

Mother appealed Judge Langton's ruling to the Michigan Court of Appeals. In her appellate filings, Mother raised all manner of custody arguments relative to the embryos, claiming that the family court had jurisdiction on the basis that a frozen embryo was a "person".

One indication of the unusual nature of the case is that each of the three appellate judges assigned to the panel wrote a separate opinion. The case was remanded back to Judge Langton in a 2-1 vote.

In the lead opinion, Judge Colleen O'Brien -a former Oakland Circuit Court Judge herself- wrote that the lower court should have treated this case as a contract dispute, not a custody matter. In remanding the case back to the family court, however, the Court of Appeals noted that the record was insufficiently developed to determine whether the family court had jurisdiction.

The appellate court mused whether the subsequent conduct of the parties served to amend the contract; it also wondered whether one or both parties waived the arbitration clause of the contract by their filings in the family court; the court further speculated that the family court, and not the civil division, was the proper court to decide this dispute.

Taking issue with the dissenting opinion, Judge Christopher Murray felt compelled to write a concurrence, emphasizing that the majority opinion properly identified and corrected the family court's error: the lower court improperly dismissed the embryo dispute based on the case caption.

Judge Murray points out that in remanding the matter to further develop the record, the majority opinion merely points out that an issue may exist regarding the family court's primary jurisdiction due to the arbitration clause contained within the embryo contract.

In her dissent, Judge Kathleen Jansen adopts a different approach than the majority, noting that the embryo contract technically was between the biological donors and the clinic, not between each other. Nor is Judge Jansen convinced that the arbitration language binds the former couple regarding the embryo dispute as between themselves. This view, of course, provides a green light to the lower court to conduct further proceedings in order to develop a record from which various custody rulings can emanate.

What Judge Jansen found most disturbing was the majority's characterization of the matter as a contract dispute when neither party raised that issue below but rather, couched all of their filings in terms of a custody dispute. Judge Jansen concluded that, "[t]he trial court ... lacked legal authority to consider the disposition of the embryos in the context of a custody case."

Although the Michigan Supreme Court took a pass on this interesting case, Justice Bridget Mary McCormack wrote separately to opine:

....that the trial court should not avoid the question argued by the parties: whether frozen embryos are persons subject to a custody determination. The answer to that question could prove dispositive regarding whether the contracts resolve this dispute. See Harvey v Harvey, 470 Mich 186, 194 (2004) (stating that “parties cannot stipulate to circumvent the authority of the circuit court in determining the custody of children”). And if the trial court concludes that embryos are not subject to a custody determination, it is still bound to make a determination about the proper legal disposition of those embryos, if not under contract law or child custody law. Under Const 1963, art 6, § 1, it has an obligation to exercise the judicial power to decide the dispute before it. See also MCL 600.605 (circuit courts “have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state”). 

With the case now remanded to her trial court, Judge Langton will re-consider Mother's motion for summary disposition tomorrow morning. She will decide whether a frozen embryo is a spec of property or a human life.

Post #617
www.clarkstonlegal.com

Honorable Hala Jarbou

When Oakland Circuit Judge Lisa Gorcyca was first elected in 2008, and assigned to a courtroom with a general docket, the Oakland County Prosecutor dispatched Hala Jarbou to manage the criminal case calls in that courtroom. Judge Gorcyca was greatly assisted in running efficient criminal calls each week due to assistant prosecutor Jarbou's style, presence and knowledge of the criminal law and its procedure.

During her stint as Judge Gorcyca's docket prosecutor, we here at the Law Blogger observed a prepared, knowledgeable and personable lawyer. Ms. Jarbou left the Oakland County Prosecutor's office several years ago to work the drug-crime prosecution unit in U.S. Attorney Barbara McQuade's office in Detroit.

All of this bodes well for Governor Rick Snyder's appointments of Ms. Jarbou and Garan Lucow attorney Jeffrey Matis to fill the vacancies on the Oakland County Circuit Court. These individuals are already listed on the Oakland County Circuit Court's page of the judgepedia web site.

Judge Rudy Nichols retired after 25-years on the bench and Judge Colleen O'Brien recently was appointed by Governor Snyder to the Michigan Court of Appeals. When these vacancies open-up, the veteran judges have the option of moving into the general jurisdiction docket from the family court or vice versa.

Normally, we see the migration of judges from the family court to the general jurisdiction docket and suspect it is due to the burn-out that occurs among family court professionals.

Veteran Judge Cheryl Mathews has indicated her desire to leave the family court to take over Judge Nichols' docket. Whether Judge Gorcyca, also a veteran judge with seniority, will do likewise, and step into Judge O'Brien's docket remains to be seen as she has yet to make-up her mind on the issue.

Therefore, at least one of the new appointees will become a family court judge. Depending on Judge Gorcyca's final decision, both of the new judges could be seated on the family court.

For his part, Jeffery Mattis becomes one of the few civil litigators appointed to the Oakland County Circuit Court bench. We here at the Law Blogger always find it refreshing to have lawyers that tried cases become the newest judges on one of Michigan's most active courts.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #503