(CNSNews.com) -- The Missouri State Court of Appeals will decide whether a divorced woman has the right to implant two embryos she and her ex-husband had frozen nine years ago.
The case, which was heard on Wednesday, involves two embryos created in 2007 by in-vitro fertilization (IVF).
Jalesia “Jasha” McQueen wants to give birth to the two embryos created with her eggs and then-husband Justin Gadberry’s sperm, but Gadberry’s lawyers say allowing McQueen to implant their offspring would violate his right not to reproduce.
The couple currently has joint custody of their twin boys, now 8, who were conceived by IVF at the same time as the embryos in question before Gadberry was deployed to the Middle East. The remaining two embryos were cryopreserved.
In 2010, when the couple separated, they reportedly agreed that McQueen would get the embryos if they divorced, but Gadberry fought against handing them over to her during the divorce proceedings.
In 2015, St. Louis County Family Court Commissioner Victoria McKee ruled that the embryos were a unique kind of “marital property” and gave the parents joint custody of them. McKee also ruled that no action - such as transfer or use of the embryos - could be taken without the authorization of both parents.
McQueen, an immigration lawyer who described herself as a former supporter of abortion in a January interview with the New York Times, is now appealing that decision. She is supported by Missouri Right to Life, Lawyers for Life, and the American Association of Pro-Life Obstetricians and Gynecologists.
“The consequences of this appeal to these embryonic human beings are life and death. They are not lifeless property; they are living siblings of two boys who were conceived at the same time as they were,” their amicus brief states.
“The trial court erred in concluding that the frozen embryos produced by in-vitro fertilization (IVF) were not children and in awarding them as marital property, because the court had a duty to make a determination of custody of the embryos according to their best interests, in that scientific research establishes that upon fertilization, unique human beings have been produced who cannot care for themselves.”
They further contend that “the trial court erred in concluding that a constitutional right ‘not to procreate’ requires both parties’ agreement in the future to allow the frozen embryos to live and also in failing to protect the best interests of the embryos, because ... such a right not to procreate is moot when procreation has already occurred, and the best interests of the embryonic children include fostering their care, growth, and relationships with their parents and siblings.”
Gadberry says he would consider donating the frozen embryos to an infertile couple or a research laboratory or having them destroyed, but does not want to have more children with his ex-wife.
The American Society for Reproductive Medicine (ASRM) filed an amicus brief on his behalf, stating that “resolving custody disputes over unimplanted embryos with a ‘best interests of the embryo’ analysis threatens a profound negative impact on fertility care that is not grounded in science, nor compelled by law, either, in that it would trigger previously unaddressed conflicts of constitutional magnitude.”
ASRM cited Roe v. Wade and other similar abortion cases as background, arguing that if the court rules in McQueen’s favor, “every embryo - not just the ones initially selected for implantation - must be considered a child from the moment of fertilization.”
“If Appellant’s ‘best interests’ position were to prevail here,” the brief continues, “then in the event of a dispute between the man and woman who contributed their genetic material to the embryos, courts in such cases would be pressed to decide that, properly speaking, there is no such thing as an ‘excess’ embryo.
“From that viewpoint, every embryo – not just the ones initially selected for implantation –must be considered a child from the moment of fertilization, with interests of its own that require it be implanted and given an opportunity to develop and be born, even if one or both of the adults who created them prefer otherwise.”
Sean Tipton, chief advocacy, policy and development officer for the ASRM, remarked that “these kinds of cases have been in the American courts since the ‘80s.”
“This is not a new or particularly significant case,” Tipton said. “Couples who split up fight about things. If they have frozen embryos, that becomes one of the things they fight about.”
The first embryonic custody case in the nation was Davis v. Davis, a 1989 case in Tennessee. A lower court ruled in favor of Mary Sue Davis, who wanted to implant or donate the embryos she and her ex-husband had stored. However, an appeals court reversed that decision the following year, and it was affirmed by the Tennessee Supreme Court in 1992.
When asked to comment on the Missouri case, Clarke Forsythe, acting president and senior counsel of Americans United for Life, the parent organization of Lawyers for Life, told CNSNews: “Embryonic human beings should be treated with dignity and not as property. Their best interests should be considered, which means giving custody in this case to the mother, who wants to protect their lives.
“The right of a mother to care for her developing children should not be interfered with, especially in a case in which an agreement was already in place to entrust them to her.”
The Missouri appellate court is not expected to rule on the case for several months, according to the St. Louis Post-Dispatch.