Appeals court upholds frozen embryo ruling

Neither couple has the right to use or destroy the embryos without the the other person's consent.

ST. LOUIS - The Missouri Court of Appeals upheld a ruling Tuesday saying both parents have custody of frozen embryos after the couple divorced.

This stemmed from a case involving a St. Louis County couple.

Justin Gadberry and Jalesia (Jasha) McQueen created several embryos while they were still married. They had two children as a result. Two more frozen embryos remained frozen when the couple divorced in 2014.

McQueen wants to implant the remaining two embryos, and try to have more children. Gadberry does not want to have more children with his ex-wife, and wants the embryos to be donated or terminated.

Related: Appeals court hears frozen embryo case

Under the original court ruling, neither one of them can use the frozen embryo without the other's written permission. The Missouri Court of Appeals announced its decision to uphold that ruling on Tuesday.

“This case is different than any other case that has been decided by a court of appeals in this country,” said Gadberry’s attorney, Tim Schlesinger, of the law firm Paule, Camazine & Blumenthal. “And the reason is because they’re deciding the frozen embryos in the context of the Missouri statute that says life begins at conception.”

McQueen argued her case on that Missouri law. She has continuously referred to the embryos as her children, and argued they should be viewed that way by the courts, instead of property to be divided in a divorce.

Schlesinger asked the court to consider Gadberry’s right to privacy, protection from government interference, and the right to not procreate against his wishes.

Ultimately, the appeals court agreed with Gadberry – and interpreted the case in the context of the U.S. Constitution and U.S. Supreme Court cases.

“My clients ex-wife has the right to have children,” Schlesinger said. “But she doesn't have the right to have children with my client without his consent.”

He continued, “Fertility is a profoundly emotional and private enterprise to have to go through. And people should be free from having someone else telling them what they have to do with their fertility treatments.”

“Here’s somebody, my ex, who walks away with no responsibility for having entered into this process voluntarily, of his own free will, with the intention of creating children,” McQueen counters. “And that doesn’t account for anything, because his rights supersede mine now, all of a sudden.”

McQueen, who is also a practicing attorney, said Missouri and many other states don’t have detailed custody laws about frozen embryos. The science is still so new. Said the judges are “legislating from the bench,” and creating “new categories” of property.

She plans to appeal again. She is also working with lawmakers to pass legislation that will address custody of frozen embryos in the instance a couple separates. 

Schlesinger said this case could set precedent in other states that have similar statutes like Missouri.

“I think that people can go through fertility treatment and have many embryos created and not worry about the government telling them what they have to do with those embryos,” he said.


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