Missouri Appeals Court: Frozen Pre-Embryos Are Marital Property, Not Children

In McQueen v. Gadberry, (MO App., Nov. 15, 2016), a Missouri state appellate court in a 2-1 decision held that frozen pre-embryos created from the husband's sperm and the wife's eggs for the purpose of in vitro fertilization are to be treated as marital property in a divorce proceeding, rather than being treated as children. The appeals court upheld the trial court's award of the pre-embryos to the husband and wife jointly with the stipulation that they could be used only with the consent of both parties.  The wife had argued that because Mo. Rev. Statutes Sec. 1.205 declares that "the life of each human being begins at conception," the court should have treated the pre-embryos as children and awarded her custody so that she could have them implanted to become pregnant. The majority held, however, that applying this declaration to pre-embryos would infringe the father's right to privacy and his right not to procreate.  The majority observed:

We balance the interests of the parties in this case because the frozen pre-embryos are still in vitro and have not been transferred to or implanted in McQueen’s uterus, and therefore, the disposition of the frozen pre-embryos does not implicate McQueen’s right to bodily integrity in the area of reproductive choice under Roe which would outweigh any of Gadberry’s interests in avoiding parenthood.

Judge Dowd, dissenting, argued that the embryos should have been treated as children and the trial court should have applied the statutory provisions on child custody in awarding them. He argued that the father already made a reproductive decision in creating the embryos and so has no further reproductive decision to protect. AP reports on the decision.