ST. LOUIS • A divorced ºüÀêÊÓƵ 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 ºüÀêÊÓƵ County judge ruled last year, or human beings with constitutional rights. A decision is not expected for months.
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In 2010, McQueen and Gadberry signed an agreement that if they were to divorce, McQueen would get the embryos. They separated later that year.
In the divorce, Gadberry fought to stop McQueen from getting them. ºüÀêÊÓƵ County Family Court Commissioner Victoria McKee ruled in 2015 that they were a unique form of “marital property†and awarded them jointly to the two.
McQueen said she already has named the embryos Noah and Genesis.
The joint custody ruling requires McQueen and Gadberry to agree on the embryos’ future use, and it noted the kind of consequences now playing out in the appeals court. Using them, McKee wrote, could violate either McQueen or Gadberry’s right not to have children and would put an emotional toll on the parents and twins.
“The parties are never truly separated from the embryos and continue to have rights and obligations to the child that is created,†McKee wrote. “They would have to navigate why one parent did not want to actively parent the new child.â€
She continued, “How difficult would it be for one parent to pick up the twins and not take an active role in the life of a new child standing right beside them? How difficult would it be for the newborn child?â€
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.
Gadberry’s lawyer, Tim Schlesinger, said Wednesday that turning them over to McQueen would violate his client’s right not to reproduce.
“The implantation of the embryo in the uterus of a woman — that’s procreation,†he said. “My client does not want to be forced to have additional children with his ex-wife. They have two children. He does not want to go through the emotional, financial, psychological and irrevocable consequences of having more children. He shouldn’t be forced to do that.â€
He said that “forced procreation†is not only unconstitutional but could have a “dramatic chilling effect†on people seeking fertility treatments.
“If you just imagine the implications of forcing people to have all of the embryos that are created implanted,†Schlesinger said. “Can we really force people to have 10, 12, 13, 14 children?â€
Gadberry would be open to donating the embryos to research, an infertile couple or having them destroyed — but he does not want his ex-wife to bear more children with them, Schlesinger said.
McQueen’s fight has garnered support from a conservative public interest law firm and groups including Missouri Right to Life, which filed briefs with the appeals court in her support. McQueen believes the court should follow a 1988 Missouri law that says “unborn children have protectable interests in life, health and well-being.â€
McQueen started that backed a Missouri house bill this spring to direct courts on custody battles over embryos. She said her case is not merely an anti-abortion issue. For example, she said that people in the LGTB community, with no other means to have children, could face similar legal challenges.
“There are a lot of pro-choice women ... going through it because they chose to have children at a particular time and that’s why they went through†in vitro fertilization, McQueen said. “So the choice was made and now we find the courts are taking that choice away, and they’re stripping people of that choice. And that is not right.â€