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Melissa A. Featherston

Appeals court upholds decision in Missouri frozen embryo case

Justices in the Missouri Court of Appeals have upheld a lower court ruling that a divorced St. Louis couple's frozen embryos are "marital property of a special character" as opposed to human beings. The couple, who stored the embryos conceived via in vitro fertilization in 2007, will have joint custody of them. Neither of them can use the embryos unless they have their ex-spouse's consent.

The judge who wrote the majority opinion in the 2-1 decision said that by giving the two joint custody of the embryos, the court was "leav[ing] the intimate decision of whether to potentially have more children to the parties alone."

The couple, who had twins born as a result of the in vitro fertilization, had signed an agreement giving the wife custody of the remaining two embryos if the couple divorced. However, the husband later fought to nullify that agreement during their divorce proceedings.

The husband's attorney said that if his wife chose to carry those embryos to term, the man would be forced "to have children with his ex-wife against his wishes." He called the appeals court ruling "a victory for individuals against unjustified government intrusion" on his civil rights. His client has said that he would be willing to donate them to an infertile couple, to research or to have them destroyed.

Meanwhile, the woman, who has named the embryos, asked, "[W]hat right do the judges or the government have to tell me I cannot have them?" However, the courts determined that she failed to provide convincing evidence that her agreement with her then-husband over the embryos was enforceable and valid. She says that she plans to further appeal the decision.

Of course, at the heart of this case is the question of when life begins. The dissenting appellate judge argued that under Missouri law, "The two embryos at issue in this case are human beings with protectable interests in life, health and well-being." The woman has been supported in her fight by conservative groups including Missouri Right to Life.

We've seen other fights between former couples over frozen embryos, despite legal agreements being in place -- most notably that between actress Sofia Vergara and her former fiance.

This is still a relatively new area of family law. Therefore, it's essential to have sound legal advice not just when drawing up the agreement, but if it's disputed in court later on.

Source: St. Louis Post-Dispatch, "Divorced St. Louis County couple's frozen embryos are property, not humans, appellate court rules," Joel Currier, Nov. 16, 2016

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