Rich Blog International Fertility Law Group (IFLG): Missouri Frozen Embryo Ruling

Missouri Rules Frozen Embryos Can’t Be Used Without Consent

One of the most provocative issues in reproductive law is the legal status of frozen embryos—how they are disposed of, who has the right to determine how they will used, and do they have legal rights as persons under the law?

Recently we wrote about the ongoing efforts of actress Sofia Vergara’s ex-fiancée, Nick Loeb, to gain custody of frozen embryos created by the couple via IVF during their relationship. Even though the couple separated, and Vergara has since married, Loeb sued in a California court to force Vergara to allow the embryos to be born via a surrogate. When it appeared Loeb was about to lose the case, he suddenly dropped it. Just a day later, a lawsuit against Vergara was mysteriously filed in Louisiana, with the two embryos and the trustee of a trust established for their support as plaintiffs. Louisiana happens to be the only state in the nation with a law, not yet tested, that gives unborn embryos status as a “juridical person.” The Louisiana law “grants embryos the explicit right to sue and be sued, prohibits their ownership or destruction, and requires any dispute to their futures be resolved in their ‘best interests.’”

In November a Missouri appeals court sided with a lower court decision in declaring a couple’s frozen embryos to be “marital property of a special character” that cannot be gestated without the written consent of both parties. This narrow 2-1 decision took place in a state that also has a law stating that life begins at conception, and that the “rights, privileges and immunities” of “unborn children at every stage” are subject to the U.S. Constitution.

In this Missouri case, a couple started the process of IVF while the husband was in the military, after having preserved his sperm before deploying to Iraq. The couple produced four embryos via IVF and had two children via assisted reproductive technology. When the couple later divorced, the wife sought custody of the two remaining frozen embryos for the purpose of having additional children. The lower court ruled, later upheld on appeal, that it would violate the constitutional rights of the husband to be forced to procreate against his will. But remember, according to the letter of Missouri law, the husband has already procreated, as the frozen embryos are said to be human life at the point of conception.

The Missouri courts upheld the husband’s constitutional right not to be forced to become a parent. But the dissenting judge argued strongly that in fact the husband had already decided to become a parent when he allowed the embryos to be created.

“He has already exercised his reproductive rights under the Constitution and Supreme Court precedent,” wrote dissenting judge James M. Dowd. “The majority maintains that [Gadberry] [the husband] somehow still has such a right—a right to change his mind after creating the embryos—but he does not. It is too late for him. He chose to create these two embryos, and they are human lives under Missouri law.”

In other cases, Missouri courts have ruled that unborn embryos are persons under the Missouri statute for the purposes of wrongful death claims, manslaughter and first degree murder charges. The narrow margin in the frozen embryo custody case gives a chilling glimpse of what the Missouri statute’s personhood language could bode for future cases in which the disposition of frozen embryos is in dispute. We know that with the growing use of assisted reproductive technology, it’s only a matter of time before the question arises again.

 

 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.