Frozen embryo could be hot potato on remand

When Jude and Jayane Stratford were divorced in 2008, they thought they had resolved all their issues, though they did go back to court in 2009 to finalize who would get the dog.

But a couple of years later, they realized they had forgotten about something — their leftover frozen embryo at a fertility clinic.

Jude filed a motion, in which he told the court that through a mutual mistake, the parties failed to disclose the embryo’s existence. He wanted to donate the embryo to the clinic so that some other couple could use it. Jayane wanted the donation to be for medical research only.

Judge Elwood Brown of the St. Clair County Circuit Court found that Jude had the “superior interest” in the embryo. Brown’s post-judgment modification order stated

“Plaintiff [Jude Stratford] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple.

Jayane appealed.

The trial court’s order has several problems, the Michigan Court of Appeals ruled in Stratford v. Stratford. (Lawyers Weekly No. 08-77713 – 5 pages) (unpublished per curiam).

First, the order is too vague to be enforced.

The court’s order states, “That the plaintiff may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple.”

We conclude that the use of the permissive term “may” — as opposed to the mandatory term “shall” — renders the order inoperative. The court’s written opinion suggests that the court intended to resolve the dispute by granting plaintiff’s request to donate the embryo to the fertility clinic.

Nonetheless, the order neither grants nor denies the request. Rather, the order permits plaintiff to decide when and whether to donate the embryo.

Second, the order imposes obligations on a third party, the fertility clinic, “that the clinic may be unwilling to accept or unable to perform.” The COA noted that the clinic may not be able to make the embryo available for adoption, and might not be able or willing to accept the apparent restriction that only a couple, rather than an individual, can adopt the embroyo.

And who will pay the costs of keeping the embryo frozen until it is adopted, the COA wondered. The order doesn’t say. And what if Jude changes his mind — that could happen, the appeals court said, citing a law review article and several studies that documented changes of heart concerning the disposition of frozen embryos.

There are too many loose ends, the COA concluded.

And here’s a few other things to think about on remand, said the appeals court. We’re not sure whether the trial court could even modify the divorce judgment

Neither the motion nor the answer address the authority upon which the court was permitted to modify a final judgment based on mutual mistake more than two years after the judgment was final.

Beyond that, once the court decided who would get the dog, there was nothing left in the order requiring the court’s intervention, said the COA.

The COA ruled that the status quo should be preserved.

The frozen embryo will likely be a hot topic for the court, the parties, and the fertility clinic on remand.

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