In the fall of 2005, Jalesia McQueen’s then-husband, Justin Gadberry, was deployed to Iraq as a member of the U.S. Army.

The couple had been married just two months, but before he left, they discussed having children and the challenges that might prevent it — his deployment and her age, mid-30s and a decade his senior. Like many military couples, the two discussed their fertility options and decided to freeze Gadberry’s semen.

In the year that followed, while Gadberry was engaged overseas in combat missions, his wife made a proposal: How about in vitro fertilization?

They could use his frozen sperm, already preserved back home in Missouri, to fertilize her eggs. By April 2007, the couple had made four embryos. Two were implanted in McQueen’s uterus and in November 2007 she gave birth to twin boys.

The other two embryos were frozen and stored at a cryobank facility, where they would remain pre-embryos, the term for an embryo yet to be implanted.

Six years later, after a lengthy separation, the couple decided to divorce.

They split their property amicably and disputed nothing during divorce proceedings — except for the frozen pre-embryos.

The disagreement escalated to a trial, once again looping the courts into the fiercely disputed question of when exactly life begins and what rights, if any, should be given to an artificially created embryo, a legal issue that is being debated in courtrooms across the country. A case involving “Modern Family” actress Sofia Vergara is scheduled for trial next year.

The arguments in these cases, which usually come out in favor of the party who no longer wants to use the embryos, are often similar to the Missouri case.

In it, McQueen, the ex-wife, argued that the pre-embryos, under a Missouri law that states life begins at conception, are “human beings” and “unborn children” and should be treated as such.

The ex-husband claimed they were weren’t human beings — and that forcing him to procreate with his ex-wife would be a violation of his constitutional rights, forcing him to have children he doesn’t want.

The trial court agreed with the ex-husband, ruling the pre-embryos were “marital property of a special character” and assigned the pair joint custody. The embryos could not be used, the trial court ruled, without the consent of both McQueen and Gadberry.

Tuesday, in a 2-1 ruling, the Missouri Court of Appeals upheld that decision.

“I think today’s ruling is a victory for individuals against unjustified government intrusion,” Gadberry’s lawyer, Tim Schlesinger, told the St. Louis Post-Dispatch. “We don’t want the government telling when to have children or whether to have children.”


An embryologist places a canister of embryos into a cryo tank at Shady Grove Fertility Center in Rockville, Md., in May 2013. (Lance Rosenfield/Prime)

Appeals Judge Robert M. Clayton III wrote the majority opinion, stating that awarding joint custody “subjects neither party to any unwarranted governmental intrusion but leaves the intimate decision of whether to potentially have more children to the parties alone.”

But McQueen, now 44, plans to appeal the decision again, telling the Post-Dispatch that it was an “abuse of the court system” and an example of “legislating from the bench.”

“It’s my offspring,” she told the newspaper. “It’s part of me, and what right do the judges or the government have to tell me I cannot have them?”

McQueen has already assigned the embryos names: Noah and Genesis.

Her legal argument, one that Judge James M. Dowd supported in a dissenting opinion, holds that Chapter 452, section 1.205 of Missouri law, states that life begins at conception, therefore making the embryos “human beings with protectable interests in life, health, and well-being.”

But there’s a caveat to section 1.205, which the trial and appeals court used to justify its rulings: the law was written to allow the criminal or civil prosecution of a third party who caused death to an unborn fetus, if, for example, a drunk driver hit and killed a pregnant woman and her unborn child.

And that language, based on a Missouri Supreme Court ruling, applies only to a nonviable fetus “in utero.”

It says nothing about embryos conceived in vitro.

The court made it clear in the decision that its task was not to determine when life begins but rather to interpret whether Missouri law gave an in vitro embryo the legal status of a child.

Clayton wrote:

Before addressing the merits of McQueen’s points on appeal, it is important to initially note that this 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, procreational choice, and the age-old and disputed question of when life begins. Those issues are not for this Court to decide.

The appeals court ruled that embryos have no legal claim to the same protections as a human being under Missouri law and that to force a man to become a father would violate his privacy rights.

“The right of personal privacy extends to intimate activities and decisions relating to marriage, procreation, contraception and family relationships,” Clayton wrote, citing a line of Supreme Court cases including Roe v Wade. The decision “to avoid procreation . . . is protected by and ‘concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. Moreover, ‘if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Gadberry, now 34, had previously offered to resolve the embryo dispute through four different means: donate to an infertile couple, donate to science, destroy the embryos or keep them frozen until he and his ex-wife could find common ground on a solution.

For McQueen, implanting the embryos to have more children is the only acceptable outcome.

“Here’s somebody, my ex, who walks away with no responsibility for having entered into this process voluntarily, of his own free will, with the intention of creating children,” McQueen told TV station KSDK News Channel 5. “And that doesn’t account for anything, because his rights supersede mine now, all of a sudden.”

McQueen, a practicing attorney, told KSDK that Missouri and other states don’t yet have custody laws for frozen embryos because the science is still so new. She also runs a nonprofit called Embryo Defense, which, according to its website, believes in “taking responsibility as a parent and educating pro-life advocates, leaders and clergy on how to articulate a proper defense for human embryos created.”

The nonprofit supported a Missouri House bill last spring that offered the courts direction on custody rights over embryos.

Gadberry’s attorney, Schlesinger, told KSDK he hopes this case provides a road map for other states struggling with the same question.

“My client’s ex-wife has the right to have children,” Schlesinger said. “But she doesn’t have the right to have children with my client without his consent.”

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