November 15, 2016, the Eastern District issued its opinion in a Missouri first-impression pre-embryo in vitro divorce case–McQueen v. Garberry, ED 103138 (Mo. Ct. App.).
The Court’s decision runs long but warrants a full read; its core holding/ruling is:
“In this case, Gadberry claims that applying the Legislature’s declarations in section 1.205, including that life begins at conception/fertilization, to the frozen pre-embryos would violate his fundamental constitutional rights recognized in a line of U.S. Supreme Court cases, specifically, his constitutional right to privacy, right to be free from governmental interference, and right not to procreate. For the reasons discussed below, we agree.”
Some key facts discussed by the Court include:
1. Neither wife McQueen (attorney) or husband-Gadberry (soldier, MBA) are impotent and each can procreate children naturally–their reason for using in vitro was husband’s impending tour of combat duty–two of the four embryos were implanted and born alive and presumably well to the couple;
2. Custody sharing of the couple’s two children was said to be difficult;
3. Husband did not want more children with McQueen, who filed for the divorce;
4. Wife may have pulled some shenanigans by handwriting in the margin of the embryo storage documentation that “use” of the embryos would go to her in case of divorce–husband testified that language was not there when he signed it; she used blue and black ink in the same area; signed but notarized later; etc., causing the trial court to find the documents to be insufficient to hold husband in agreement on such an important issue.
Ultimately, the court of appeals affirmed the trial court’s order casting the embryos as marital property of a “special character” and requiring they be stored unless and until both McQueen and Gadberry execute a sufficient written agreement otherwise.
Kurt H. King
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