Sometimes the Court of Appeals refuses to make a decision and directs the trial court to do so before making a decision. Such was the outcome in the case of Karungi v. Ejalu, which is case involving custody of an embryo.
Gloria Karungi and Ronald Ejalu are the parents of a daughter who was naturally conceived. They were never married and despite the end of their relationship they entered into a contractual agreement with an in vitro fertilization (IVF) clinic for the preservation of their frozen embryos generated from the parties.
Their daughter had been diagnosed with sickle cell diseases and Gloria Karungi wanted to implant an embryo in order to give birth to a healthy child and then use the stem cells from the healthy child’s umbilical cord for transplantation to their daughter to cure her disease.
However after Gloria Karungi brought a support action against Ronald Ejalu involving their daughter, he apparently changed his mind and no longer wanted to follow through with the IVF. An action was brought in the support case and the trial court was confronted with the issue of who should get custody of an embryo?
The trial court determined that it did not have jurisdiction over the issue in the support case and Gloria Karungi appealed. After all, an embryo is not yet born and child support does not commence under Michigan law until a child is born.
Instead of deciding the issue, on September 26, 2017, the Court of Appeals ordered the trial court to decide the jurisdictional argument on other grounds, specifically contract principles.
The result of the Court of Appeals decision is most certainly frustrating to the parties leaving them without closure on the issue of who gets the custody of an embryo?
As a family law lawyer, I am surprised that neither party brought an independent action under a contract theory and property law. The parties sought to pursue this matter in family court as an embryo is certainly a potential life and the trial court decided (properly) that it did not have did not have jurisdiction in the support case.
It will be interesting to see how the case of the custody of an embryo turns out. We will keep you posted. More importantly, if Gloria is granted custody of the embryo, we hope the procedure works, resulting in two healthy children.
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By: Daniel Findling