KANSAS CITY, Mo. -- A divorced man and woman must mutually consent to using embryos that were frozen and stored while married, a Missouri appellate court has ruled in declaring the embryos marital property, not humans with constitutional rights.

The Missouri Court of Appeals’ 2-1 ruling Tuesday upheld a St. Louis County judge’s 2015 finding that Jalesia “Jasha” McQueen and Justin Gadberry maintain joint custody of the embryos, which have been frozen since 2007. The couple separated in 2010 and divorced last year; dissolution proceedings were drawn out by their dispute over the embryos.

McQueen and her attorney said Wednesday they will appeal, first seeking a rehearing by the appellate court and, if necessary, taking the matter to the Missouri Supreme Court.

McQueen, 44, sued Gadberry because she wanted to use embryos to have more children. But her 34-year-old former spouse doesn’t want to have any more children with McQueen, doesn’t believe he should be required to reproduce and has said through his attorney he would be willing to donate the embryos for research or to an infertile couple or have them destroyed.

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The majority ruling, written by Appeals Judge Robert Clayton III, said the court “recognizes the sensitive nature of this case and the differing personal beliefs it evokes - ethical, religious and philosophical - pertaining to scientific advancements in reproductive technology, procreation choice, and the age-old and disputed question of when life begins.

“We are only required to decide whether frozen pre-embryos have the legal status of children under our dissolution of marriage statutes,” Clayton wrote.

He also noted that McQueen’s bid to apply Missouri law defining life as beginning at conception is at odds with U.S. Supreme Court decisions protecting Gadberry’s rights to privacy, freedom from government interference and not to procreate.

Awarding joint custody, Clayton concluded, “subjects neither party to any unwarranted governmental intrusion but leaves the intimate decision of whether to potentially have more children to the parties alone.”

Dissenting Judge James Dowd countered that “Missouri 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.”



“Further, I disagree with the majority’s presumption that Gadberry’s interests outweigh those of his unborn children,” Dowd added.

McQueen, a lawyer who with Gadberry had twin 9-year-old boys through in vitro fertilization, said the ruling left her “somewhat disgusted.”

It “ignored Missouri statutes that say life begins at conception, and I think that’s a disgrace for the judicial arena and for the people it’s affecting, like me,” she told The Associated Press. “All of the statutes point to one thing - the preservation of life. For them to say otherwise is counter to the point.”

Her attorney, Steve Clark, said the two judges who ruled against McQueen “essentially created law out of thin air” by casting the embryos as property, and “they do not and cannot point to any holding of the U.S Supreme Court that says there’s some sort of right not to procreate.”

Gadberry’s attorney countered that “my client should not be forced to become a parent against his will.” Compelling a frozen embryo to be implanted without consent of both people who created it, Tim Schlesinger added, “subjects private citizens to unwarranted governmental intrusion.”

“What about the people who have six, eight or 10 frozen embryos? Are they required to have six, eight or 10 children?” he said.