ST. LOUIS 鈥 A 狐狸视频 County couple who divorced after having embryos frozen and stored nine years ago will maintain joint custody but neither can use them without the other鈥檚 consent, the Missouri Court of Appeals ruled Tuesday.
The 2-1 decision upholds a 狐狸视频 County Circuit Court ruling recognizing the embryos as 鈥渕arital property of a special character鈥 instead of human beings with constitutional rights.
Appeals Judge Robert M. Clayton III wrote the majority opinion saying that awarding joint custody 鈥渟ubjects neither party to any unwarranted governmental intrusion but leaves the intimate decision of whether to potentially have more children to the parties alone.鈥
The 狐狸视频-area couple, Justin Gadberry, 34, and Jalesia McQueen, 44, had embryos frozen in 2007 while they were married. They had twin boys through in vitro fertilization, but two other embryos remain frozen.
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Three years later, McQueen and Gadberry signed an agreement that if they divorced, McQueen would get the embryos. They separated later that year, and Gadberry fought in divorce proceedings to stop McQueen from getting the embryos.
鈥淭he court recognized that to require Justin to have children with his ex-wife against his wishes would violate his fundamental constitutional rights,鈥 Gadberry鈥檚 lawyer, Tim Schlesinger, said Tuesday. 鈥淚 think today鈥檚 ruling is a victory for individuals against unjustified government intrusion. We don鈥檛 want the government telling when to have children or whether to have children.鈥
The ruling means the remaining embryos will remain in storage until the two can agree on what to do with them.
Schlesinger has said Gadberry would be open to donating them to research or an infertile couple, or having them destroyed.
The court said its only task was to decide whether the embryos have legal status as children under Missouri鈥檚 divorce laws. Its ruling said McQueen鈥檚 attempt to apply state law defining life as beginning at conception is at odds with U.S. Supreme Court decisions protecting Gadberry鈥檚 rights to privacy, to be free from government interference and not to procreate.
鈥淭he right of personal privacy extends to intimate activities and decisions relating to marriage, procreation, contraception and family relationships,鈥 Clayton wrote.
The court also said McQueen had not offered convincing evidence that her pre-divorce agreement with Gadberry was valid and enforceable, and said that frozen embryos are 鈥渘ot easily susceptible to a just division.鈥
Judge Lisa S. Van Amburg concurred with Clayton. But Judge James M. Dowd dissented, writing, 鈥淢issouri 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.鈥
He wrote that by creating the embryos, the litigants already had made the 鈥渞eproductive decision.鈥
Dowd also said Missouri law does not provide for 鈥渕arital property of a special character,鈥 and he disagreed with the majority assessment that Gadberry鈥檚 rights outweighed those of the embryos.
McQueen said she plans to appeal the decision, calling it an 鈥渁buse of the court system鈥 and an example of 鈥渓egislating from the bench.鈥
She added, 鈥淚t鈥檚 my offspring. It鈥檚 part of me, and what right do the judges or the government have to tell me I cannot have them?鈥
She already named the embryos Noah and Genesis. Her legal fight drew support from a conservative public interest law firm and groups including Missouri Right to Life, which filed briefs in her support. McQueen runs that backed a Missouri house bill last spring that would direct courts on custody battles over embryos.