Cold Leftovers: Can A State Require That Extra Embryos Be Implanted?
A fascinating appellate court ruling on the disposition of frozen embryos.
Last week, a fascinating appellate court ruling on the disposition of embryos came out of the Missouri Court of Appeals, digging into some of the most essential legal questions on embryos.
The Facts. Jalesia McQueen, an attorney, and her husband Justin Gadberry, a member of the U.S. Army, created embryos in order to have children. They went through in vitro fertilization not because either of them suffered from infertility or other medical complications, but because Gadberry was to be deployed to Iraq. The couple intended for McQueen to be able to attempt a pregnancy in the event something happened to Gadberry. After Gadberry returned from Iraq, McQueen did attempt a pregnancy and was successful, resulting in the couple’s twin boys. But when the couple separated in 2010, they had two embryos remaining. McQueen wished to gain sole custody of the embryos for conception of additional children. Gadberry, as is common for ex-spouses, did not want additional children with his ex-wife.
Missouri’s Embryos = Life Law. In most states, this is an easy case. As I discussed in my previous article about the Rooks case, the right to *not* procreate generally takes precedence over the right to procreate. But in this case, things quickly went south for Gadberry.
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For one, Missouri law, strictly interpreted, would not allow the embryos to be destroyed. Missouri’s statutes recognize that an embryo’s status is as “a person with protectable rights in life, health and well-being from the moment of conception onward, unless such protection is barred by the U.S. Constitution and decisional interpretation thereof.”
OK. Don’t panic yet. The law says it applies to “conception,” which many define as implantation of an embryo in the uterus, not just fertilization of an egg with sperm. However, Missouri law also goes on to define “unborn child” and “conception” to include “the offspring of human beings from the moment of conception until birth and at every stage of its biological development, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus.” OK, now panic.
The Agreement. So the state wouldn’t let Gadberry destroy the embryos. But maybe the clinic’s consent form will somehow help poor Gadberry? Nope. The dispositional term of the agreement signed and initialed by both parties indicated that upon divorce, the embryos shall be given to McQueen for her use. Double panic?
Good thing Gadberry had a calm and skilled attorney in Tim Schlesinger of Paule, Camazine & Blumenthal, P.C.
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The Constitutional Argument. Gadberry decided to go big or go home. He successfully argued that the U.S. Constitution prevented the Missouri statute from being applied in this context. Otherwise, he argued, his right to privacy would be violated. Gadberry cited to the privacy rights found in the penumbras of the Bill of Rights in cases such as Roe v. Wade (recognizing that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution) and Eisenstadt v. Baird (often cited for the right not to reproduce). As Justice Brennan wrote in Eisenstadt, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” So yes, men can cite Roe v. Wade too!
Schlesinger noted that “McQueen has the right to have more children, if she chooses. She does not have the right to have more children with my client, against his wishes.”
The Agreement. Fortunately for Gadberry, the signing of the consent agreement also appeared to give him an out. Specifically, the notary signed the last page six days before the date he initialed next to the divorce provision. Furthermore, the language stating that the embryos would go to McQueen in the event of divorce had been hand-written in by McQueen, and Gadberry did not recall it being there when he signed – implying that McQueen may have written it in after he signed.
The Dissent. This was not a unanimous decision. Although two judges sided with Gadberry, the third felt strongly that “Missouri law makes one thing abundantly clear: the two embryos in this case are human beings with protectable interests in life, health, and well-being.” The dissent dismissed the constitutional arguments as merely citing dicta in cases such as Roe and Eisenstadt. The dissent also stated that “[t]he majority maintains that Gadberry somehow still has such a right—a right to change his mind after creating the embryos—but he does not. It is too late for him. He chose to create these two embryos and they are human lives under Missouri law.”
The Implications. Schlesinger summed up the case as “a victory for individual constitutional rights, against unjustified governmental intrusion. The decision of whether or not to have children, and when to have them, should lie only with potential parents. If the state were allowed to treat frozen embryos as persons, in this context, then the government would be making that decision.” The implications of the dissent are confusing and disturbing. What if McQueen did not want to use the embryos herself? Would she have to gestate them against her wishes? As the majority recognized, the dissent’s analysis would trigger a government’s ability to step in and mandate implantation of all embryos, even if neither the father nor the mother wanted that outcome. That sounds like something out of a terrible dystopian fiction novel.
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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at [email protected].
