Split appeals court denies woman’s request for custody of frozen embryos

 Declares them “marital property of a special character”

By Dave Andrusko

mcqueen When last we reported on still another battle over disposition of frozen embryos, Jalesia McQueen was appealing the decision of a St. Louis County trial court judge who ruled that neither McQueen nor her ex-husband “could use or destroy the embryos without the written consent of the other.”

The St. Louis Post-Dispatch reported that on Tuesday, a divided Missouri Court of Appeals ruled that McQueen and her ex-husband Justin Gadberry, would maintain joint custody of the two human embryos whom McQueen has already named Noah and Genesis.

Appeals Judge Robert M. Clayton III wrote the majority opinion in the 2-1 decision. He stated that awarding joint custody “subjects neither party to any unwarranted governmental intrusion but leaves the intimate decision of whether to potentially have more children to the parties alone.” He described the frozen embryos as “marital property of a special character.”

The dissenter, Judge James M. Dowd, passionately disagreed. He wrote, “Missouri law makes one thing abundantly clear: The two embryos at issue in this case are human beings with protectable interests in life, health and well-being.”

McQueen says she plans to appeal. She told Joel Currier of the Post-Dispatch that the decision was an “abuse of the court system” and an example of “legislating from the bench.”

She added, “It’s my offspring. It’s part of me, and what right do the judges or the government have to tell me I cannot have them?”

Meanwhile the embryos will remain in storage until the couple can reach a decision they can both agree to.

The court based its decision on several grounds.

First, according to Currier, Judge Clayton and Judge Lisa S. Van Amburg made it clear the court saw its task not to decide when life began but

to decide whether the embryos have legal status as children under Missouri’s divorce laws. Its ruling said McQueen’s attempt to apply state law defining life as beginning at conception is at odds with U.S. Supreme Court decisions protecting Gadberry’s rights to privacy, to be free from government interference and not to procreate.

   Katie Mettler of the Washington Post, wrote, “The appeals court ruled that embryos have no legal claim to the same protections as a human being under Missouri law and that to force a man to become a father would violate his privacy rights.”

In his opinion, Judge Clayton concluded, “The right of personal privacy extends to intimate activities and decisions relating to marriage, procreation, contraception and family relationships.”

According to the Post-Dispatch, “the couple had embryos frozen in 2007 while they were married. They had twin boys through in vitro fertilization, but two other embryos remain frozen. Three years later, McQueen and Gadberry signed an agreement that if they divorced, McQueen would get the embryos. They separated later that year, and Gadberry fought in divorce proceedings to stop McQueen from getting the embryos.”

The second reason the majority reached its conclusion was that Clayton and Amburg maintained McQueen “had not offered convincing evidence that her pre-divorce agreement with Gadberry was valid and enforceable, and said that frozen embryos are ‘not easily susceptible to a just division,’” Currier wrote.

In his dissent, Judge Dowd wrote that by creating the embryos, McQueen and Gadberry already had made the “reproductive decision.”

Missouri law does not provide for “marital property of a special character,” Dowd said, and “he disagreed with the majority assessment that Gadberry’s rights outweighed those of the embryos.”

For McQueen, having the embryos implanted in her is the only acceptable outcome. (According to numerous accounts Gadberry offered four other unacceptable options: destroying the two embryos, “donating” them to science, donating them to an infertile couple, or keeping them in a cryobank facility.)

“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 told TV station KSDK News Channel 5. “And that doesn’t account for anything, because his rights supersede mine now, all of a sudden.”