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Missouri court rules frozen embryos are property, not people

21 November 2016

By Sarah Pritchard

Appeared in BioNews 878

An appeal court in Missouri has ruled that a divorced couple's frozen embryos should be treated as marital property and not as people, under the state's divorce laws.

The case concerned a woman's request to use frozen embryos, created with her ex-husband while they were married, to have more children – an application which he opposed. She argued that, under state law in Missouri, life begins at conception and, as such, the embryos should be treated as human beings.

Deciding two to one in the husband's favour, the court ruled that to do otherwise would violate the man's right not to procreate. Judge Robert Clayton III said that he would be 'subjected to unwarranted governmental intrusion into the intimate decision of whether to potentially have more children'.

In reaching this conclusion, the court upheld the trial judge's finding that the frozen embryos should be treated as property of a 'special character' and awarded them jointly to the woman and her ex-husband. This means that they cannot be used without both parties' consent.

The woman involved, Jalesia McQueen, said the court was 'legislating from the bench' and intended on appealing. 'It's my offspring,' she told The Washington Post. 'It's part of me, and what right do the judges or the government have to tell me I cannot have them?'

McQueen – who is a lawyer herself – told a local TV station that Missouri and other US states do not have custody laws for frozen embryos because the science is still so new.

Recognising the 'sensitive nature' of the case, Judge Clayton remarked that it evoked differing 'ethical, religious and philosophical beliefs pertaining to scientific advancements in reproductive technology'.

He also highlighted that it was not for his court to decide the 'age-old question of when life begins', but whether the embryos had legal status as children in divorce proceedings.

In dissent, Judge James Dowd supported the woman's argument that Missouri law states life begins at conception, therefore making the embryos 'human beings with protectable interests in life, health and well-being'.

McQueen had created the embryos with her ex-husband, Justin Gadberry, while he was engaged overseas in combat missions with the US Army. The couple had used two embryos, giving birth two twins in 2007, opting to put the remaining embryos into storage for possible later use. McQueen filed for divorce in 2013. 

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