Off Topic: Embryos and Orbiter Dictum

By Doug Chalgian on March 25, 2022


Sarah and David are getting divorced.  They have four kids, all produced through in vitro fertilization.  The eggs were from Sarah’s sister.  The sperm was David’s.

At the time of the divorce, one embryo remained frozen.

In the divorce proceeding, Sarah’s counsel argues that the embryo is martial property (not a human being). In this appeal, the Court of Appeals says that she is now estopped from arguing otherwise, and therefore the decision over whether she gets it, or whether it goes to David (as was ordered by the trial court) must be decided on the rules applicable to the division of martial property.  The COA remands the issue so that the trial court can take into consideration property division rules that come into play when unique assets are involved.

But the COA keeps going and gets itself into a discussion about how other states have dealt with frozen embryo disputes (when they have not been deemed property), and how such analysis might be applied in this case.  This discussion precipitates a concurrence and dissent from one panel member, who chastises his colleagues for generating “orbiter dictum.”  [You’ll have to read the case to figure out how this differs from old-fashioned regular dictum.  I did, but I’m still not sure.]

Markiewicz v Markiewicz is interesting case and covers a curious topic. Not probate.  But maybe worth a read.

To read the opinion, click here

To read the concurrence/dissent, click here


mm By: Doug Chalgian
Doug Chalgian

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