Just as the Supreme Court has allowed to stand, at least for now, a Texas abortion restriction, and is hearing in just weeks arguments over a Mississippi abortion restriction, a looming Michigan case poses a critical question to the courts:
Do child custody laws apply to the unborn?
It actually was then-Supreme Court associate justice Harry Blackmun, who wrote the much-disputed 1973 Roe v. Wade opinion that created a “right” to abortion, who expressed an inkling of what he was doing back then.
He wrote that “if this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] amendment.”
Activists for years have supported that exact argument, that at conception the unborn becomes fully human, albeit not fully developed, and now a district court judge in Michigan is being told to make that determination.
Officials with the Great Lakes Justice Center have confirmed that the Michigan Court of Appeals now has reversed and remanded the Karungi frozen embryo case back to Oakland County Circuit Court for further proceedings.
The dispute already has been pending for several years.
But the fight that already has been at the level of the appeals court, and the state Supreme Court, is being sent back to the circuit court for a decision on the issue of “the life-status of the embryos or whether child custody law applies…”
Among the back-and-forth developments earlier was a decision from the state Supreme Court to return the case to the trial to resolve “legal questions” about the fight between Gloria Kato Karungi and Ronald Lee Ejalu.
The case is a custody dispute over embryos that were created by a couple, and now are in the custody of a fertility clinic – and a motion is pending before the courts to appoint a guardian ad litem to protect the interests of the “unborn children.”
At that time, Justice Bridget McCormack wrote a specially concurring opinion not just to agree with the next move, but to instruct the lower court judge.
“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,” she wrote. “The answer to that question could prove dispositive regarding whether the contracts resolve this dispute.”
Now, the GLJC said Karungi has filed a brief with Oakland County Circuit Judge Lisa Langdon and is requesting that the court grant her custody of the embryos.
“The issue in this case revolves around whether the embryos are mere property or are life that is deserving of the court’s protection,” the GLJC explained. “The court of appeals has now clearly stated that the trial court can determine ‘the life-status’ of these embryos. Michigan law currently protects embryos at all stages of life, for example, in wrongful death actions involving a fetus, restrictions on research involving embryos, and protection of embryos’ property rights in estates.”
Twice already Karungi’s request to bring at least one of the embryos to full term has been rejected.
She wants custody “partially so she could have another child to potentially help her 11-year-old daughter treat her sickle cell disease with stem cells from the baby’s umbilical cord.”
She is “willing to waive any child support or other obligations that the defendant might incur. As a mother, Ms. Karungi has the constitutional right to make decisions affecting her body and her pre-born children after fertilization. She simply wants to have custody and prevent the destruction of the embryos,” the center said.
Earlier, a medical expert submitted to the court the testimony that said: “We can confidently conclude that a new cell (the human zygote), that is distinct from the gametes that gave rise to it, both in terms of molecular composition and behavior, comes into existence at the scientifically well-defined ‘moment’ of sperm-egg fusion, an event that occurs in less than a second.”
Organisms, she explained, “are ‘living beings.’ Therefore, another name for a human organism is a ‘human being’; an entity that is a complete human, rather than a part of a human. … Thus the conclusion that a human zygote is a human being (i.e. human organism) is not a matter of religious belief, societal convention or emotional reaction. It is a matter of observable, objective, scientific fact.”
So in this case, “the 7-10 embryos that are the subject of dispute in this case are biologically the unborn children (i.e. minor children) of the plaintiff and defendant.”
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