(CN) – A divided Missouri appeals court ruled Tuesday that the frozen embryos of a divorced couple must be treated as marital property, not as children, even though state law defines life as beginning at conception.
A divorce case required a Missouri judge to decide whether two pre-embryos, which were frozen after the couple began the process of in vitro fertilization, should be considered children or marital property.
Jalesia McQueen and Justin Gadberry have two children together, but decided to freeze two pre-embryos before Gadberry began a tour of duty in Iraq in case they wanted to have more.
They dispute whether they discussed what to do with the pre-embryos in case their marriage ended. McQueen filed a petition for dissolution of marriage against Gadberry in October 2013.
At trial, McQueen testified she wanted to implant the embryos in an attempt to potentially have more children with Gadberry.
Gadberry, however, said he does not want to have more children with McQueen, and wants the embryos to be destroyed or donated to an infertile couple.
Missouri law recognizes that “an embryo is a person with protectable rights in life, health and well-being from the moment of conception onward,” according to court records.
But the trial judge found the frozen pre-embryos should be treated as marital property of a “special character,” and awarded them to the husband and wife jointly, ordering that they cannot be used without both parents’ consent.
The Missouri Court of Appeals’ Eastern District affirmed Tuesday that applying the state law that life begins at conception would violate Gadberry’s constitutional right to privacy and right not to procreate.
“Gadberry’s fundamental right not to procreate would be irrevocably extinguished if McQueen bears more of Gadberry’s children, a situation where Gadberry would be forced to become a biological parent again, this time against his will,” Judge Robert Clayton III said, writing for the panel’s 2-1 majority. “In addition, Gadberry would be subjected to unwarranted governmental intrusion into the intimate decision of whether to potentially have more children.”
The right to privacy demands that a major decision in life, such as that to become a parent, should be left to the husband and wife alone, the appeals court ruled.
Clayton affirmed the trial judge’s decision to classify the pre-embryos as property of a “special character,” which reflects the “special respect” to which they are entitled.
Under this designation, “the frozen pre-embryos are to remain in their status quo of being cryogenically preserved and stored until the parties both agree in writing as to another disposition,” the majority’s opinion states.
Judge James Dowd dissented.
“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. The majority cannot square its holding with the law,” Dowd said. “Nor can it square its holding with §§188.010 and 188.015(3) and (10), providing that all humans, born and unborn, have the right to life; that unborn children include the offspring of human beings from the moment of conception through every stage of biological development, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus; and that conception is defined as the fertilization of the ovum of a female by a sperm of a male.”
Dowd said he would apply child-custody provisions to the pre-embryos.