Michigan Supreme Court

Lansing, Michigan

Stephen J. Markman,

 Chief Justice

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Kurtis T. Wilder

Elizabeth T. Clement,

Justices

Order 

April 6, 2018 

156644 

GLORIA KATO KARUNGI, 

Plaintiff/CounterdefendantAppellee, 

v SC: 156644 

 COA: 337152 

Oakland CC Family Division: 

2016-841198-DS 

RONALD LEE EJALU, 

 Defendant/Counterplaintiff- 

 Appellant. 

_________________________________________/ 

 On order of the Court, the application for leave to appeal the September 26, 2017 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

 MCCORMACK, J. (concurring). 

 I agree with the Court’s order denying leave to appeal, which properly leaves it to 

the trial court to resolve several fact-intensive legal questions in the first instance. 

Among those questions are, as the Court of Appeals noted, whether the contracts between 

the parties and the in vitro fertilization clinic affect the proper disposition of this case. 

While I express no opinion on the correct resolution of that issue, it is possible those 

contracts alone could prove outcome-determinative. 

 I write separately to note 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 
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 

 

April 6, 2018 

p0403 

 

2

Clerk 

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”). 

 Should it become necessary to determine the disposition of the embryos outside 

contract law or child custody law, the trial court may wish to avail itself of the 

nonbinding authorities that have grappled with these difficult questions. See, e.g., Davis 

v Davis, 842 SW2d 588, 604 (Tenn, 1992) (applying a balancing-of-interests test to 

determine the disposition of frozen embryos); Flannery, “Rethinking” Embryo 

Disposition Upon Divorce, 29 J Contemp Health L & Pol’y 233 (2013) (discussing three 

different approaches to the disposition of frozen embryos upon divorce).