by: Susan L. Crockin, J.D.
Published in ASRM News December 2016
MO Court of Appeals Rejects Wife’s Claim to IVF Pre-Implantation Embryos as “Children”
A Missouri appellate court has affirmed the trial court’s ruling against an ex-wife in a frozen embryo dispute in that state. McQueen v. Gadberry (11/15/16). As previously reported, the ex-wife, Jalesia McQueen, argued that the former couple’s frozen embryos are children, and subject to a Missouri statute, RSMO - 1.205, which provides that, the “life of each human being begins at conception” and “unborn children have protectable interests.” The wife, herself an attorney, has been supported in her litigation by the Thomas More Society, which filed an amicus (friend of the court) brief arguing pre-implantation IVF embryos are fully human beings.
Missouri’s intermediate appellate court rejected the applicability of that statute, finding instead that Gadberry’s 14th Amendment Constitutional rights to privacy, equal protection, freedom from governmental interference, and the right not to be forced to procreate against his wishes were all implicated, and--of critical importance--the Court explicitly distinguished unborn children from cryopreserved pre-implantation IVF embryos, or, in its words, “pre-embryos.” Citing legal sources, the court noted, “we will refer to pre-zygotes not yet transferred to a uterus as ‘pre-embryos’ and pre-zygotes which have been cryogenically preserved as ‘frozen pre-embryos’ for purposes of this opinion.” The court acknowledged, “…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...instead, we are only required to decide whether frozen pre-embryos have the legal status of children under our dissolution of marriage statutes…,” a question the court answered in the negative.
In balancing the former couple’s respective Constitutional rights to procreate or not procreate, the court also found that McQueen was not infertile (the Court did not state why IVF was used).
The court found “no merit” in McQueen’s argument for an appointed GAL (guardian ad litem) to represent the best interests of the pre-embryos, finding the pre-embryos were not born children and thus did not necessitate an analysis of custody, support or visitation.
Rejecting McQueen’s argument that the pre-embryos were “unborn children,” the appellate court instead defined them as indivisible marital property because of their “special character”--language strikingly similar to the original American Fertility Society Ethics Committee’s statement that pre-implantation IVF embryos are neither persons nor property, but deserving of “special respect.” (Editor’s note: In a 2016 ASRM Ethics Committee document, the Committee upheld this earlier stance by stating, “Embryos have special significance compared with gametes because of their potential to become persons, but they should not be afforded the same status as persons. Adoption refers to a specific legal procedure that establishes or transfers parentage of existing children.”
http://www.asrm.org/uploadedFiles/ASRM_Content/News_and_Publications/Ethics_Committee_Reports_and_Statements/Defining%20embryo%20donation2013.pdf It is a characterization that continues to be a critical distinction in this area of reproductive law and medicine, with many courts utilizing language such as “pre-embryos” as well. Given that special character status, the court ruled they could not be transferred, released or used without both gamete providers’ authorization.
The court also agreed with the lower court’s rejecting as invalid a “directive” the parties had signed to transfer their pre-embryos from Missouri to a bank in Virginia, after it refused to accept the wife’s testimony attempting to explain her handwritten additions to the document stating she could use the embryos following a separation or divorce in a different ink color than her signature and the signing being done in two steps. Both courts found the directive was not signed in good faith or with full disclosure.
In contrast, the dissent conflated both “conception” with “fertilization,” and pre-implantation IVF embryos with in-utero developing fetuses, and then argued that embryos are human beings not marital property, and that the ex-husband had no right to change his mind after creating them.
Legal experts in Missouri anticipate a further appeal to that state’s Supreme Court.
McQueen v. Gadberry, Mo. Ct. Apps, E.Dis. (11/15/16); http://www.courts.mo.gov/file.jsp?id=107496
A Missouri bill, HB 2558 (2015-16), was filed after this case, but failed to become law, with McQueen testifying in favor of it. HB 2558 would have recognized pre-implantation IVF embryos as human beings, liberally allowed individuals to petition for “custody,” and would have determined custody disputes based upon the “best interest” of the embryos. The bill was opposed by ASRM, SART, and AAARTA.
A recent court filing in Louisiana has raised similar issues, and has some of the same legal advocates, in the most recent twist in the ongoing dispute over two pre-implantation IVF embryos created by Sofia Vergara and Nick Loeb which are currently in storage in California.
Loeb Attempts to Move Fight for Embryos to Louisiana with Lawsuit Naming Embryos as Plaintiffs
Two frozen pre-implantation IVF embryos are the putative plaintiffs in a new lawsuit filed in Louisiana. The embryos were created by Sofia Vergara and her former fiancée Nick Loeb and are stored in California. Loeb has been attempting to gain control over the two embryos through a California suit he filed after the couple split, despite their written agreement at the time of their IVF to jointly decide if and when to use the embryos. Loeb has had the strong support of the Thomas More Society, the same anti-abortion group backing McQueen in Missouri. The California lawsuit is reportedly close to being dismissed following court-ordered disclosure of the names of two former girlfriends who had purportedly terminated pregnancies with Loeb.
The recently-filed lawsuit in Louisiana attempts to capitalize on that state’s unique statute, which states that embryos are “juridical persons.” The 1986 law, LA-RS 9 Sec. 123, entitled “Capacity,” states: “[a]n in vitro fertilized human ovum [defined as a ‘human embryo’ in the preceding section of the law] exists as a juridical person until such time as the in vitro fertilized ovum is implanted in the womb, or at any other time when rights attach to an unborn child in accordance with law.” Louisiana attorneys in the case have established a trust in that state which they claim the embryos cannot take advantage of unless they are released to Loeb, implanted in a gestational surrogate, and allowed to be born. The lawsuit seeks to give Loeb full control over the embryos, to allow their "continued development and live birth,” which the complaint asserts is in their “best interests,” a child welfare standard typically relevant only in custody cases involving born children. The complaint also asks that if Vergara does not want to be involved in the subsequently born children’s lives, she be deemed an egg donor.
The new lawsuit is at the same time unique and familiar. While an attempt to sue in the names of embryos is distinctive, headline-catching, and likely only available because of Louisiana’s statute, in more than 20 years of litigation involving IVF embryos by former couples, no appellate court has ruled that a pre-implantation IVF embryo is the legal equivalent of a born child. A number of former wives have made such arguments, including Jaselia McQueen (see immediately above), without success. The few lower courts that have favored an ex-wife’s use of embryos over her husband’s non-use in a balancing test, have based those decisions on the couple’s respective constitutional rights to reproduce or not reproduce.
Two other issues are worth watching as this litigation unfolds: first, the asserted bases for Louisiana jurisdiction is unusual to say the least, where neither Vergara or Loeb are residents of the state and the embryos are stored in California. Reportedly, the bases include a trust set up by a third party located in Louisiana, the former couple having broken up at the New Orleans airport, and lastly, Loeb--a resident of Florida--owning a business in Louisiana and being a volunteer policeman in the state. Secondly, the statute that grants IVF embryos status as “juridical persons” has never been tested and is quite likely unconstitutional. In the context both of preserving IVF options for patients, and impacting so-called “personhood” bills and other anti-abortion initiatives, the case should serve as yet another reminder of the legal importance of distinguishing pre-implantation IVF embryos--or “pre-embryos” as many courts describe them, from either in utero pregnancies or born children.
Various sources, including:http://www.nola.com/crime/index.ssf/2016/12/sofia_vergara_lawsuit_gretna.html
Arkansas Refuses to Recognize Same-Sex Married Couple on Child’s Birth Certificate
In a break from a large number of state courts that have recognized legal parentage of married, same-sex couples, on December 8, 2016, a divided Arkansas Supreme Court overturned a lower court and refused to allow three legally married, same-sex female couples to have the spouse of the biological mother placed on their child’s birth certificate without a post-birth adoption.
Although no DNA test is required to prove that biological connection for different-sex couples, the state argued that a same-sex spouse could not claim a biological link, and therefore was not entitled to legal recognition under Arkansas law; not constitutionally protected under the U.S. Constitution as a matter of due process or equal protection; and that any changes in the law—which require a court order for non-biological parents, should be up to the state legislature, not the courts.
The lower court had found the state’s refusal to issue birth certificates violated the U.S. Constitution after the U.S. Supreme Court’s Obergefell decision upholding a constitutional right to marriage for the same-sex couples. In reversing that ruling, the Arkansas Supreme Court emphasized the biological, not marital, basis for recognizing legal parentage, stating: “It does not violate equal protection to acknowledge basic biological truths.” The court was seemingly unwilling to acknowledge the realities of sperm and egg donation for married, heterosexual couples, as well as same-sex couples, and the inconsistent legal status it was adopting for those various families.
The couples’ attorney has reportedly not yet decided if she will appeal the decision.
Smith v. Pavan, 2016. Ark. 437 (CV-15-988); Arkansas S.Ct. (12/8/16).
“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART. --Susan Crockin, JD