Missouri Appeals Court Rules On Frozen Embryo Custody – Part Two

A Frozen Embryo Caught in the Middle of Divorce 1

In our previous post, we tackled the first hurdle in the McQueen v. Gadberry case of first impression – that a non-implanted frozen pre-embryo is not considered a child such that a family court in a divorce proceeding could award a parent custody of the frozen pre-embryo under the same laws governing the award of already born children. In this post, we look at whether the frozen pre-embryo is property and can be part of a postnuptial agreement.

Because a frozen pre-embryo is an “external thing” over which one or both parties could exercise control, the Eastern District majority found it met the general definition of marital property. However, it also acknowledged it is marital property “of a special character,” because it has the potential to become human life, and as such deserve “special respect.” The Eastern District upheld the trial court awarding the property jointly to both parents with any transfer or use of the frozen pre-embryos requiring the written consent of both parents.

Some may object to using “thing” to describe a frozen pre-embryo. The dissenting judge certainly did, believing it unequivocally a child under Missouri law. But recall we are in uncharted territory and, as with abortion cases, dealing with scenarios between conception and viability, where the law has been settled for over 45 years that women have a right to control whether they wish to terminate a pregnancy pre-viability. A frozen pre-embryo is not even in utero, so another step removed from viability. The irony in this case is that a man can refuse to become a father, that he has the same control as the woman in an abortion case. The Eastern District majority resolved any apparent paradox by noting that in any insemination resulting from intercourse, pregnancy is a known risk to both parties, so the man gave his consent to have a child by having intercourse, whereas in artificial insemination, consent must be given prior to implantation. Logically this makes sense, but some people may find this reasoning at odds with personal beliefs about when life begins. But courts must deal with law, and the law takes a different view with regard to when embryonic or fetal life trumps parental choice.

The Eastern District had to resolve one more issue – an alleged agreement the parties signed to effect the transfer of the frozen pre-embryos to a new facility. McQueen prepared to paperwork to sign. Rather than sign the whole document at once, McQueen had Gadberry sign the signature page for the whole document first, and six days later a page in the document dealing with disposal of the pre-embryos. McQueen could not explain why she had the signatures on two separate days. McQueen also handwrote the directive that gave her control over the pre-embryos – language Gadberry claimed he never saw when he signed. The trial court found no enforceable agreement, and the Eastern District agreed, finding Gadberry did not knowingly with full disclosure agree to give McQueen full control of the pre-embryos.

Importantly, the Eastern District noted in a footnote that it took no position on whether parties can enter into valid and enforceable agreements regarding the disposition of frozen pre-embryos upon divorce.

So, what exactly has the McQueen case resolved? It held that a frozen pre-embryo is not a child subject to custody during a divorce. But the Eastern District made its holding fact specific to this case, where both parties had the ability to procreate without the frozen pre-embryos. Would the outcome have been different if McQueen could not have any more children, and the couple never had any children together? We do not know. It also gave little indication whether it would enforce knowing postnuptial agreements addressing control of frozen pre-embryos in the event of divorce.

It is possible the Missouri Supreme Court could accept transfer of this case, or even the U.S. Supreme Court; time will tell. But it seems likely this issue will continue to appear in the courts given the extended use of in vitro fertilization.

Perhaps the General Assembly could eliminate the confusion and pass clear laws with regard to the rights of individuals involved in these types of in vitro fertilizations.

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

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