Divorced St. Louis County couple's fight over frozen embryos heard in appeals court here


Frozen embryos… are they people with constitutional rights, or are they property? A Missouri appellate court is weighing that question.

A divorced St. Louis County couple’s two frozen embryos have been stored for six years at a cryogenic lab in Fairfax, Va.

Jalesia “Jasha” McQueen is 44, says her biological clock is ticking and is suing to use the embryos to try to have more children. She has 8-year-old twin boys from her now dissolved marriage and a 2-year-old son by another man.

McQueen’s ex-husband, Justin Gadberry, 34, wants no more children with McQueen and believes he should not be required by the courts to reproduce against his will. Their twins were born in 2007 through in vitro fertilization after Gadberry returned home from active military duty in Iraq.

The fight reached the Missouri Court of Appeals here Tuesday as lawyers for each debated whether the embryos are property, as a St. Louis County judge ruled last year, or human beings with constitutional rights. A decision is not expected for months.

McQueen’s appeal argues that her embryos have a right to life under Missouri law that defines embryos as humans created at conception. She also claims the lower court’s decision improperly invalidated her right to them under the pre-divorce agreement.



Apparently this case is just one of several which may be tried in the courts.

In the past, frozen embryos have been typically been treated as marital property, with a “right not to procreate” upheld in divorce decisions. The consent of both persons would be needed before the embryos could be implanted for development and birth.

But if the embryo is a child, then the best interest of the child would be to be born.

But anti-abortion groups argue that such cases should be decided according to the best interests of the embryos, the same legal standard used in child-custody disputes. In a friend-of-the-court brief filed last month in the Missouri dispute, they say an embryo’s most fundamental interest is to be born: “No other right is of any avail if a human being is not around to invoke it.”

Thomas Olp, of the Thomas More Society, a conservative public-interest law firm that filed the brief in concert with Missouri Right to Life and other anti-abortion groups, said: “Husbands and wives can divide up their property however they want, but embryos are living beings, so the legal standard has to be what’s in their best interest.”

Mr. Olp said his firm is likely to also join any appeal of recent cases in Chicago and San Francisco, involving women who froze embryos when they received cancer diagnoses and sought to use them after treatment, over the fathers’ objections.



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