March 01, 2017

Frozen Pre-Embryos Classified as Marital Property of a Special Character and Awarded Jointly to Divorced Couple

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

McQueen v. Gadberry, 2016 WL 6777902 (Mo. Ct.. App.).

The Missouri Court of Appeals affirmed finding jointly awarding frozen pre-embryos in divorce proceedings because there were conflicting constitutional rights and frozen pre-embryos are not “children.” The conflicting constitutional rights were the husband’s right not to procreate, the wife’s right to procreate, and both parties’ right to be free from governmental interference with his or her procreational decisions. 

McQueen and Gadberry decided to create pre-embryos through in vitro fertilization (IVF) because of concerns about McQueen’s age and Gadberry’s upcoming deployment. The decision was not based on infertility concerns but rather geographical separation. While Gadberry was stationed in another state they created four pre-embryos via IVF. During this process both parties agree there was no agreement about their intentions for the pre-embryos or discussion about how many children they wanted. 

Two of the four pre-embryos were implanted in McQueen, who gave birth to twins after a successful pregnancy. The remaining two frozen pre-embryos were stored at a cyrobank facility in St. Louis until the facility closed and the frozen pre-embryos were transferred to a different facility in Virginia. To facilitate this transfer, the couple had to complete a set of documents including a “Directive Regarding the Disposition of Embryos.” Gadberry and McQueen separated shortly after executing these documents and divorced three years later. The remaining two frozen pre-embryos were the reason for this case. 

The lower court found the frozen pre-embryos were marital property of a special character and awarded them to McQueen and Gadberry jointly. The lower court specified “no transfer, release, or use of the frozen [pre-] embryos shall occur without the signed authorization of both [Gadberry] and [McQueen].” This decision was based on the parties’ fundamental constitutional right to privacy and equal protection under the 14th Amendment. McQueen appealed the decision arguing the frozen pre-embryos should have been classified as children not as marital property of a special character, the appointed guardian ad litem (GAL) should have been required to advocate for the best interests of the frozen pre-embryos, and if appropriately characterized as martial property the court should not have awarded them jointly. 

The appeals court found the frozen pre-embryos were appropriately classified as martial property of a special character. McQueen argued they should have been classified as children based on a state statute (Mo. Ann. Stat. § 1.205) declaring that, inter alia, life begins at conception and applies to frozen pre-embryos. Gadberry argued applying § 1.205 would violate his constitutional right to privacy, right to be free from governmental interference, and right not to procreate. The appeals court agreed with Gadberry. 

The court examined statutory definitions of “unborn child” and “conception” and applied decisions from previous cases. Previous decisions used § 1.205 for purposes of applying criminal and civil liability against third parties for causing the death of an unborn fetus in utero. The court held that § 1.205 cannot be read in a vacuum and must be read to consider constitutional rights given by the U.S. Supreme Court. Because in this case the frozen pre-embryos are in vitro, classifying them as martial property does not run afoul of Roe v. Wade, which would give greater weight to a woman’s constitutional rights to procreate if she were pregnant. The U.S. Supreme Court has held that a citizen’s fundamental, individual right to procreational autonomy is inherent in the U.S. Constitution’s concept of personal liberty. Meaning, Gadberry and McQueen both have the right to be free from governmental interference with their procreational decisions. 

Gadberry did not want to potentially have any more children with McQueen, they already had two children and had parenting issues with those children. The court held “although McQueen has a right to procreate, that does not mean she has a right to procreate with Gadberry by implanting the frozen pre-embryos which contain his genetic materials.” McQueen’s right to procreate is not limited by this decision because she has the ability to procreate and could do so with another man. Additionally, this decision protects both their rights to not have unwarranted governmental intrusion, allowing them to make the intimate decision about having more children. For these reasons, the appeals court agreed with the classification of the frozen pre-embryos as martial property of a special character. 

During trial, the court appointed a GAL who was present at trial and briefly questioned McQueen but did not submit recommendations or question Gadberry. McQueen argued the lower court should have required the GAL to advocate for the frozen pre-embryos best interests. To succeed on this argument the court would have had to classify the frozen pre-embryos as “children.” Because the court did not re-classify the pre-embryos as children, this argument lacked merit. 

McQueen argued the trial court should not have awarded the frozen pre-embryos to the parties jointly because the directive signed with the transfer documents was an enforceable agreement making them separate property for McQueen, and, if they were not separate property, the court was required to divide the property. Property is assumed to be marital property unless there is evidence the property is separate. McQueen argued the signed directive as part of the transfer documents was evidence the parties intended McQueen to get the frozen pre-embryos if divorce occurred. The signed directive had dates that did not line up, handwriting in several different colors of ink, and testimony that discussions about the document did not occur. The lower court examined in depth the signing of the directive with the transfer papers and found they did not create an enforceable agreement making the frozen pre-embryos separate property for McQueen; the appeals court agreed. 

Trial courts are required by Missouri statute (452.330.1) to divide marital property; however, several decisions from the appeals court do not prohibit a court from awarding property jointly in unusual circumstances when the property cannot be divided justly. In this case, the conflicting constitutional rights and lack of enforceable agreement between the parties supported the lower court’s award as joint property. 

One judge dissented because he interpreted Missouri law to mean the two embryos at issue were human beings with protectable interests in life, health, and well-being because conception is defined as fertilization in the ovum of a female by a sperm of a male. Because of this legal interpretation, the judge would have classified the frozen pre-embryos as children.