If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
GLORIA KATO KARUNGI, UNPUBLISHED
August 19, 2021
Plaintiff/Counterdefendant-
Appellant/Cross-Appellee,
v No. 351165
Oakland Circuit Court
RONALD LEE EJALU, LC No. 2016-841198-DS
Defendant/Counterplaintiff-
Appellee/Cross-Appellant.
Before: GADOLA, P.J., and JANSEN and O’BRIEN, JJ.
JANSEN, J. (dissenting)
For the reasons that follow, I respectfully dissent.
There were several indications at oral argument that this litigation is being pursued for
improper purposes. First, when plaintiff’s attorney was asked whether plaintiff still intended to
undergo implantation of an embryo to have a child to help cure EKE’s sickle cell anemia,
plaintiff’s attorney responded in the negative. “[A]s a general rule, this Court will not entertain
moot issues or decide moot cases.” TM v MZ, 501 Mich 312, 317; 916 NW2d 473 (2018)
(quotation marks and citation omitted). “A moot case presents nothing but abstract questions of
law which do not rest upon existing facts or rights.” Id. (quotation marks and citation omitted). A
moot case involves a judgment which “cannot have any practical legal effect upon a then existing
controversy.” Id. (quotation marks and citation omitted). Plaintiff’s attorney stated that plaintiff
wanted to make sure that she had the “option” to implant the embryos in the future, that plaintiff
had most likely made inquiries into new forms of treatment for sickle cell anemia, and asserted
that the destruction of the embryos was not hypothetical. However, despite the assertion by
plaintiff’s attorney, the panel clarified that any alleged intention by defendant to destroy the
embryos is not at issue on appeal. This case has been pending for five to six years, and despite
alleging that one purpose of implanting an embryo is to treat EKE’s sickle cell anemia, plaintiff
has no current plans to undergo this procedure. Therefore, there is no current controversy, and this
case is moot. Id.
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In light of this conclusion, it appears that this case is being litigated to support broader
interests than those of the parties. At oral argument, defense counsel asserted that this case has
been targeted by a public-interest law firm with a pro-life mission as a test case for determining
whether embryos have “human” rights. Throughout the proceedings, plaintiff has advanced the
argument that embryos are humans, not property. When asked whether plaintiff’s case was being
represented pro bono, plaintiff’s attorney stated that she “believed” that plaintiff was paying, but
she was not associated with the billing department of the law firm she was associated with, and
did not know if a third party was paying for plaintiff’s legal fees on her behalf. This conflicts with
the evidence in the lower court record, in particular, the affidavit establishing plaintiff’s indigency,
resulting in the trial court dismissing the order requiring her to pay a security bond. Thus, it
appears that this case is an improper and dishonest use of the Court to advance public interests,
rather than litigate the rights of these parties.
Lastly, I continue to advance the reasons provided in my dissenting opinion of the initial
appeal decided in this case. See Karungi v Ejalu, unpublished per curiam opinion of the Court of
Appeals, issued September 26, 2017 (Docket No. 337152) (JANSEN, J., dissenting). I agree with
the conclusions of the majority that the alleged “donor agreement” is unenforceable under the
statute of frauds and irrelevant as it relates to artificial insemination rather than in vitro fertilization
(IVF), and that the trial court properly held that it could not decide the dispute without the IVF
clinic as a named party. There is no contract between the parties regarding the disposition of the
remaining embryos. The parties are each in contract with the IVF clinic; however, plaintiff failed
to produce a signed, written agreement pertaining to embryo implantation, the issue on appeal, and
the IVF clinic has not been named as a party to the litigation.
However, I would ultimately affirm the decision of the trial court to dismiss plaintiff’s
motion for a custody determination based on the lack of authority to consider the custody of frozen
embryos. Based on the previous opinion of this Court, the trial court determined that it was
restricted to applying contract law to the issues under the law-of-the-case doctrine, and held that
the parties would remain joint owners of the embryos until they reached an agreement. This Court
may affirm the decision of the lower court when the right result is reached, although for the wrong
reasons. Forest Hills Co-operative v Ann Arbor, 305 Mich App 572, 615; 854 NW2d 172 (2014).
As stated in my previous dissenting opinion, there is no law in Michigan that supports the
proposition that frozen embryos are persons subject to a custody determination. Thus, the trial
court lacks legal authority to consider the disposition of embryos in the context of a custody case,
and dismissal of plaintiff’s motion was appropriate.
/s/ Kathleen Jansen
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