Missouri Court of Appeals Upholds Individual’s Constitutional Right Not to Procreate; Finds Frozen Embryos Marital Property of Special Character

November 16 , 2016
by: ASRM Office of Public Affairs
Orginally published in ASRM Bulletin Volume 18, Number 29

Yesterday, in McQueen v. Gadberry, the Missouri Court of Appeals affirmed the judgment of the trial court that, for the purposes of Missouri’s dissolution of marriage statutes, frozen embryos are not children, but marital property of a special character (the Court’s italics), deserving of special respect.

At the core of the dispute were two frozen embryos formed via IVF in early 2007 for a couple, Jalesia McQueen and Justin Gadberry.  That cycle resulted in the birth of twins. After the dissolution of their marriage, Ms. McQueen wished to use the remaining embryos to have more children.  Mr. Gadberry, however, did not want to have additional children with Ms. McQueen.

In her lawsuit, Ms. McQueen claimed that the embryos were children, based on a Missouri statutory declaration that says life begins at conception and that an embryo is an unborn child entitled to the same rights and privileges as any other resident or citizen of the state.  

In its decision, the Court of Appeals distinguished stored, cryopreserved in vitro embryos from implanted embryos and, upholding the trial court, found that to apply the statutory declaration to a dissolution of marriage action would violate Mr. Gadberry’s fundamental constitutional rights to privacy and freedom from governmental interference, and his right not to procreate.

The Court awarded the embryos jointly to Mr. Gadberry and Ms. McQueen, ordering that “no transfer, release, or use of the frozen [pre-]embryos shall occur without the signed authorization of both” parties.

ASRM submitted an amicus brief in the case.  In it, the Society addressed the implications of a “best interests of the embryo” child custody approach for fertility care; the difficulties created in considering embryos persons; and the incompatibility of the Missouri statutory declaration with state law and federal constitutional law.

The ASRM Bulletin is published by ASRM's Office of Public Affairs to inform Society members of important recent developments. Republication or any other use of the contents of the Bulletin without permission is prohibited. To request permission to quote or excerpt material from the Bulletin, contact Sean Tipton at stipton@asrm.org.   


Sean Tipton
Phone: 202-863-2494
Email: stipton@asrm.org

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