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A Change of Heart – The Fate of Embryos After Divorce (Part 1 of 2)

divorce CAScientific advancements in modern medicine have made the impossible possible for couples with infertility problems.

But these advancements sometimes create an additional wrinkle in the divorce process once a marriage is on the rocks, and sometimes their repercussions can be felt years after a divorce is finalized.

The latter is the case for a divorced Missouri couple battling over the future of two frozen embryos.

Jalesia McQueen, 44, wants more children and wants to accomplish this using the embryos, which were created during her marriage to Justin Gadberry, according to the St. Louis Post-Dispatch. Her ex-husband doesn’t want more children, and doesn’t believe he should be required to reproduce against his will.

The case reached the Missouri Court of Appeals in June. It is unknown when a decision will be announced.

This situation is complicated, because the couple signed an agreement in 2010 that gave McQueen the embryos if the couple divorced. Gadberry backtracked during the divorce process and tried to block McQueen from getting them. However, a St. Louis County Family Court commissioner ruled in 2015 “that they were a unique form of ‘marital property’ and awarded them jointly to the two,” according to the Post-Dispatch.

McQueen isn’t alone in her fight to reproduce post-divorce. In 2015, California anesthesiologist Dr. Mimi Lee lost her fight to retain embryos created via IVF in 2010. She and her then-husband, Stephen Findley, signed an agreement stating the embryos would be discarded if the couple divorced, the Wall Street Journal reported.

They divorced later in 2010, and unlike the Missouri case, a judge upheld the agreement Lee and Findley signed and ordered the embryos destroyed.

Such an agreement doesn’t always hold up in court. In 2015, an Illinois appellate court upheld a ruling that granted custody of three frozen embryos to a cancer survivor, according to a Chicago Tribune article. Dr. Karla Dunston was diagnosed with cancer and had to undergo chemotherapy. Prior to treatment, she asked her then-boyfriend to provide sperm. He did, but he never signed a co-parent agreement giving Dunston control of the embryos. The couple’s relationship ended in 2010, and the ex-boyfriend changed his mind after negative reactions from friends and a new girlfriend, according to court documents.

Luckily, couples sometimes can agree on the fate of frozen embryos in light of divorce. In May, the New York Daily News reported that former Knicks coach Derek Fisher and his ex-wife Candace would destroy their frozen embryos that were created during their marriage.

These four cases outline the disparity in judgments, depending on various circumstances and the states in which the couples reside. Stay tuned for Part Two of this series, where we will address steps couples can take to help avoid a court battle over embryos in the event of divorce.

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Family Attorney John N. Griffith, CFLS

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Family Attorney, Catie E. Young, ESQ.

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Family Attorney Amy J. Lass, Esq.

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