• Shruti Gautam

Frozen Embryos, Custody Battles, and Roe

One in eight couples have trouble conceiving. For them, stuck in ice is the latest debate over what defines lawful living.

Sperm preserved in "semen sticks" is viable for up to 50 years and frozen embryos can reach 55 (Veornique/Science).

In 2016, a divorced couple went to court over a point of contention in their separation — frozen embryos. Jalesia McQueen and Justin Gadberry had created four embryos through in vitro fertilization (IVF) during their time together, two of which were implanted and resulted in the pair’s twins. However, when they divorced years later, each had their own opinion on what to do with the remaining embryos. McQueen claimed that with her age, these could be her last chance to have more children, and she wanted custody over the embryos. Gadberry, on the other hand, did not want to be responsible for children he did not want. In the end, McQueen v. Gadberry deemed the embryos to be marital property and gave them both joint custody, stating it was not the government’s role to intervene and make the decision for them.

McQueen, however, pushed that the court was undermining Missouri statutes, as state statute § 1.205 declares that life begins at conception, asserting that there is legal protection for the unborn. She wanted for the case to treat the embryos as children, an assumption that her attorney supported as well. Instead, the court essentially established and acknowledged Gadberry’s negative right to not procreate. Gadberry did not want to have children, despite his previous investment in the embryos, and as the embryos were not considered to be of life, they had no protection. The situation brings light to the complex intricacies of reproduction and the legal field.


The discussion surrounding abortion is much more than what it means to terminate a pregnancy.

Legal precedents are set, defining how other cases are dealt. Roe v. Wade (1973) not only deemed safe and legal abortion a right but also stated that life legally begins at birth. Thus, if following federal considerations, the embryos in McQueen v. Gadberry could not be treated as children. Even though the destruction of embryos comes from the understanding of the subjects not being alive, it’s that same logic that deems the embryos cannot be destroyed simply because of the potential of life. They were treated as property, and the case was settled as any property dispute in a divorce would. But, the way life is defined differs from state to state.

McQueen’s attorney tried to use this declaration; however, § 1.205 overrules only the constitutional right established in Roe v. Wade, and thus, the court pushed that the statute cannot be read in a vacuum and must consider other party’s constitutional rights as well. In this, they considered Gadberry’s want to not father the children an extension of his right of personal liberty, with the dissenting opinion claiming the court had created “law out of thin air."

Despite the outcome of the case, an important discussion did arise: how should the definition of the beginning of life be considered in cases not about abortion? Even with the highly conservative perspectives on procreation and conception in Missouri, the court set strict legal ground for the way life must be interpreted. Such cases have sprung up in courts across the U.S., with states dealing with gray line between the definition of life and pre-implantation embryos in different ways.

A new surge of infertility legislation in the past four years has been propelled by high-profile IVF cases.

On July 1st, 2018, Arizona passed a law declaring that in such situations, embryos must be given to the parents who want to develop them to birth. The decision stems from a differentiation between embryos and tissue, claiming the potential of life equates embryos to human beings and thus extends human rights to the embryos. Cases in Illinois and Pennsylvania have considered the embryos as property and gave them to the mothers who could not reproduce otherwise, and in other instances, courts chose not to definitively intervene, as seen in McQueen v. Gadberry, and instead ruled to donate the embryos to research or freeze them indefinitely until the pair sorts the matter in between them. Although not directly related, the politics of abortion infiltrated such legal cases, as precedents set in court seem to be widely applicable to the legal definition of life in a termination of a pregnancy.

How the legal system defines life does not only affect the right to abortion, but it has lasting implications on cases that deal with reproduction as a whole. The legal definition of life is arising to be contentious.

There have been cases where the statute of life beginning at conception has been used to change one’s age by 9 months, with one person trying to alter their age to qualify to run for political office and another attempting to make a victim of rape older than they were to get less of a sentence.

As McQueen v. Gadberry also asserted, § 1.205 may only be specific to the practice of abortion, and it needs to be seen in context of the issue. The legal definition of life is contentious, and legal systems will only run into such complications more and more.

Both centered around defining life, abortion and IVF cases have become entangled as of late (Marovich/Getty).

IVF is giving options to people who previously didn’t have any, and in the past few years, politicians have greatly supported this practice and tried to bring down barriers such as associated cost. The lack of insurance care for the treatment leads to the industry having to be involved in the legal sector to improve accessibility of its product. As IVF becomes increasingly popular, the practice also finds itself head to head with the anti-abortion movement. The legal establishment of life beginning at conception leads to conflicts that make IVF much harder to sustain. A paper published in 2019 by Boys and Harris of Indiana University shows how the IVF industry supports lobbying against anti-abortion legislation.

Deeming that embryos have human rights could significantly limit how IVF is performed.

There is a lot of funding and little to no regulation behind IVF, and the business will be politically and legally involved to keep it that way. This corporate motivation is a unique and unexpected addition to the political climate of abortion.

Pre-implantation embryos have shown the complex nature of the relationship between reproduction and law. But, to some extent, this is a step in the right direction. Legal cases on whether embryos are marital property or children deal with the same nuances associated with the definition of the beginning of life that are often glossed over in abortion and anti-abortion discussions. Also, the scenarios help both politicians and legal professionals alike better understand the intricate nature of conception. As the legal discussion around frozen embryonic material continues to grow, hopefully the understanding of the implications of the definition of life will improve as well.


Cover: Veronique Burger/Science

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