Missouri Appeals Court Rules On Frozen Embryo Custody – Part One

A Frozen Embryo Caught in the Middle of Divorce 1

We have previously discussed how the handling of frozen embryos in divorce cases involves relatively uncharted territory, as the technology has advanced faster and further than the law. Today, in McQueen v. Gadberry, the Eastern District of the Missouri Court of Appeals ventured into this new world and provided some guidance and some unanswered questions.

First the facts of the case. McQueen is an attorney; Gadberry a member of the armed services. Because Gadberry had to deploy overseas for long periods of time, McQueen worried about their ability to have a family. Eventually, McQueen and Gadberry agreed to have “pre-embryos” (in vitro fertilized egg not yet implanted in utero) created using McQueen’s eggs and Gadberry’s sperm. At the time of creating the pre-embryos, they had no written or express agreement as to what would happen to any unused pre-embryos. In all, the fertilization produced four pre-embryos. Two of the pre-embryos were implanted in McQueen and resulted in the birth of their twin boys. The other two pre-embryos remain frozen. At a certain point the facility housing the frozen embryos closed and McQueen arranged for a transfer to a new facility. In so doing, the parties executed certain documents, which will be discussed later.

Eventually McQueen and Gadberry separated and McQueen filed for divorce. McQueen sought full “custody” of the frozen pre-embryos, believing they were unborn children under a Missouri statute. Gadberry considered the pre-embryos marital property subject to division, and he wanted a division that would give him the right to refuse to become a parent if the court did not order the pre-embryos destroyed. McQueen can still have children of her own; these pre-embryos do not represent her only ability to have more children with her genetic material.

The trial court decided that the pre-embryos were “marital property of a special character” and not children. It proceeded to award ownership of the pre-embryos the parties jointly, and that no transfer or use of the pre-embryos can occur without the written consent of both parties. McQueen appealed.

The Eastern District first had to address the issue of first impression – whether the pre-embryos were children or marital property. McQueen based her argument on a Missouri statute, Section 1.205, enacted during the argument over abortion rights. The statute defines life as beginning at conception, that an unborn child is considered a person with protectable interests in life, but that these rights are limited to decisions of the U.S. Supreme Court interpreting provisions of our federal constitution. The U.S. Supreme Court, in the Webster abortion case of 1989, did not find Section 1.205 entirely unconstitutional, only insofar as it affected a woman’s right to abortion. Since Webster, Missouri courts have invoked Section 1.205 to give rights to unborn fetuses (for example, in wrongful death cases). It has never been invoked – until now – to give protection to pre-embryos.

The majority of the Eastern District panel invoked U.S. Supreme Court cases that give individuals rights of procreative autonomy, including the decision whether to have – or not have – children, rights that extend to men and women alike. Under the facts of this case, where the pre-embryos are frozen and not implanted, the man and the woman have an equal right to procreational autonomy. Giving McQueen control of the decision would force Gadberry to become a father against his will. Because this would violate Gadberry’s constitutional rights, and because McQueen can still procreate, the balance of the constitutional interests favors Gadberry. As a result, Section 1.205 cannot apply and the pre-embryos are not children.

But are they property? We will leave that discussion, and whether the parties can enter into a written agreement regarding the disposition of the pre-embryos upon divorce, to our next post.

If you have questions about frozen embryos and divorce, contact us – we can help.

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