Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  April 6, 2018                                                                      Stephen J. Markman,
                                                                                                Chief Justice

  156644                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  GLORIA KATO KARUNGI,                                                                    Kurtis T. Wilder
           Plaintiff/Counterdefendant-                                              Elizabeth T. Clement,
           Appellee,                                                                                 Justices


  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
                                                                                                               2

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).




                         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
                                                                             Clerk
