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Frozen Embryos Are Not Children, Missouri Appeals Court Rules

By George Khoury, Esq. on November 17, 2016 | Last updated on March 21, 2019

In a decision that was bound to be controversial regardless of the result, a Missouri appeals court ruled that the frozen embryos of a divorced couple are not people, and refused to grant custody of the embryos to either spouse. While this result may seem completely logical, it is seemingly at odds with Missouri law. In Missouri, pretty much any time after conception, an unborn child is considered a human being with protectable rights. The dissenting judge's opinion highlights the decisions conflict with Missouri law.

The case involved a divorce couple that had a few embryos frozen prior to their divorce. After the divorce, the former wife wanted to use the embryos, while the former husband wanted to either donate the embryos to a third party or have them destroyed. The judge basically blocked either from being able to get want they want by ruling that both former spouses had to consent to how and by whom the embryos could be used.

How Is This at Odds With the Law?

The lone dissenting justice asserted that under Missouri law, the embryos are children and that child custody provisions should have applied to the dispute. The dissenting justice explains that Missouri law provides unborn children, even before the time of conception, with protectable interests in life, health and well being, and explained that embryos generally have the right to life. It would seem that this judge would have given the embryos to the wife, as that would have likely given the embryos the highest likelihood of being born.

The majority opined that allowing one party to use the embryos over the objection of the other was a violation of the other's constitutional right to procreation. That using an embryo over a biological parent's objection takes away the objector's right to choose to be a parent. The majority also ruled that the embryos were marital property of a "special character" that should not be disposed of, used, donated, nor destroyed until the parties agreed.

Regardless of any personal beliefs, the appeals court's decision seems to be the fairest result. However, given the dissenting opinion, it would not be surprising to see pro-life groups fund an appeal to the Missouri Supreme Court.

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