In its opinion filed on November 15, 2016, the Missouri Court of Appeals Eastern District (“Appellate Court”) held that the parties’ pre-embryos that had been frozen as part of an in vitro fertilization process when they were married were marital property of a special character, and not children, and therefore the now-divorced parties were properly awarded the frozen pre-embryos jointly, subject to the restriction that “no transfer, release, or use of the frozen [pre-]embryos shall occur without the signed authorization of both.”
The trial court had determined that the parties’ fundamental constitutional rights to privacy and equal protection under the 14th Amendment to the U.S. Constitution would be violated if either was forced to procreate against his or her wishes. The Appellate Court held that the trial court’s judgment awarding joint ownership and restricting the transfer, release, and use of the frozen pre-embryos did not subject either party to any unwarranted governmental intrusion but rather leaves the intimate decision of whether to potentially have more children to the parties alone.
The Appellate Court held that when weighed against the interests of the former husband and wife and the responsibilities inherent in parenthood, the Missouri General Assembly’s declarations in section 1.205 RSMo 20001 relating to the potential life of the frozen pre-embryos are not sufficient to justify any infringement upon the freedom and privacy of the parties to make their own intimate decisions; that the parties alone should decide whether to allow a process to continue that may result in such a dramatic change in their lives as becoming parents; that an application of section 1.205, including declarations that life begins at conception/fertilization, to the frozen pre-embryos and to Missouri’s dissolution statutes under the circumstances of this case, would be contrary to U.S. Supreme Court decisions interpreting the U.S. Constitution and would violate the former husband’s constitutional right to privacy, right to be free from governmental interference, and right not to procreate; and, that the trial court’s judgment is consistent with broad definitions of “marital property” and “property” and is consistent with the principle that frozen pre-embryos are entitled to a special respect.
Source McQueen v. Gadberry, No. ED103138
A dissenting opinion states: “Missouri law makes one thing abundantly clear: the two embryos at issue, in this case, are human beings with protectable interests in life, health, and well-being. Section 1.205. The majority cannot square its holding with the law. Nor can it square its holding with sections 188.010 and 188.015(3) and (10), providing that all human beings, born and unborn, have the right to life; that unborn children include the offspring of human beings from the moment of conception through every stage of biological development, including human conceptus, zygote, morula, blastocyst, embryo, and fetus; and that conception is defined as the fertilization of the ovum of a female by a sperm of a male.”
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