One of the most important family law decisions in 2016 in Missouri is Jalesia McQueen, Petitioner v. Justin Gadberry, Respondent, decided by the Eastern District on November 15, 2016. It involves a couple who were undergoing IVF and had frozen pre-embyos that wife wanted to have implanted in her uterus and bring to term over husband’s objection.
McQueen and Gadberry married on September 2, 2005. Early in the parties’ marriage, the parties discussed their concerns about having children due to Gadberry’s upcoming deployment to Iraq and McQueen’s age. Prior to Gadberry’s deployment, he met with McQueen’s doctor and produced semen specimens which were frozen.
Gadberry was deployed in Iraq from November 2005 through November 2006. During his deployment to combat areas, McQueen and Gadberry discussed beginning the process of IVF. At some point, both parties agreed to have pre-embryos created from Gadberry’s frozen semen and McQueen’s eggs via IVF. The parties’ decision to begin the process of IVF did not occur because McQueen had any issues relating to infertility but occurred because the parties were geographically separated as a result of Gadberry’s active military service.
Sometime between February and April of 2007, while Gadberry was stationed at Fort Bragg, North Carolina and McQueen was in the St. Louis area, four pre-embryos were created from McQueen’s eggs and Gadberry’s sperm via IVF, and two of those pre-embryos were implanted in McQueen. As a result of the implantation of the two pre-embryos, McQueen became pregnant and, in November 2007, she gave birth to twin boys, T.G. and B.G. The remaining two pre-embryos were cryogenically preserved and stored at a cryobank facility.
The parties separated sometime in September 2010, and on October 11, 2013, McQueen filed a petition for dissolution of marriage against Gadberry.
The main argument between the parties involved the disposition of the 2 frozen pre-embryos, and whether McQueen could proceed to have the embryos implanted in her uterus over Gadberry’s objection to having additional children. It is important that the embryos were not already implanted in McQueen’s uterus. The Court specifically recognized the sensitive nature of the case and the differing personal beliefs it evokes—ethical, religious, and philosophical—pertaining to scientific advancements in reproductive technology, procreational choice, and the age-old and disputed question of when life begins. The court stated: “Those issues are not for this Court to decide. See In re Marriage of Witten, 672 N.W.2d 768, 774 (Iowa 2003) (‘we are not called upon to determine the religious or philosophical status of [ ] fertilized eggs’). Instead, we are only required to decide whether frozen pre-embryos have the legal status of children under our dissolution of marriage statutes…”
In this case, after a very lengthy discussion of Constitutional law, lengthy analysis of the written contracts with the cryobank facility signed by the parties, detailed discussion and analysis of the Missouri laws, and careful consideration of all of the facts, the Court decided:
1. the wife was not entitled to award of frozen pre-embryos so that she could continue IVF process over husband’s objection;
2. the frozen pre-embryos could not constitutionally be considered “children” under dissolution of marriage statutes;
3. frozen pre-embryos are to be classified as marital property of a special character; and
4. the parties should be awarded the frozen pre-embryos jointly because the frozen pre-embryos are not easily susceptible to a just division.
5. Finally, the court required that no transfer, release, or use of the frozen pre-embryos shall occur without the signed authorization of both Gadberry and McQueen, thereby leaving the intimate decision regarding whether to have more children with each other to the parties alone.
In short, if wife wanted to use these frozen pre-embyros to produce more children, husband would have to agree.