McQueen v. Gadberry

Decision Date15 November 2016
Docket NumberNo. ED 103138,ED 103138
Parties Jalesia MCQUEEN, Appellant, v. Justin GADBERRY, Respondent.
CourtMissouri Court of Appeals

507 S.W.3d 127

Jalesia MCQUEEN, Appellant,
Justin GADBERRY, Respondent.

No. ED 103138

Missouri Court of Appeals, Eastern District, DIVISION THREE .

Filed: November 15, 2016
Motion for Rehearing and/or Transfer to Supreme Court Denied December 15, 2016
Application for Transfer Denied January 31, 2017

Stephen R. Clark, Adam S. Hochschild, St. Louis, MO, for Appellant.

Tim R. Schlesinger, Alan E. Freed, St. Louis, MO, Terri J. Johnson, Clayton, MO, for Respondent.

Timothy Belz, St. Louis, MO, Kate Oliveri, Ann Arbor, MI, for the Thomas More Law Center.

James S. Cole, Jefferson City, MO, for the Missouri Right to Life, Lawyers for Life, and American Assoc. of Prolife Obgyn.

Anthony E. Rothert, St. Louis, MO, for the A.C.L.U.

Joseph J. Kodner, Clayton, MO, John M. Faust, Washington, D.C., for the American Society for Reproductive Medicine.


Jalesia McQueen appeals the portion of the trial court's judgment dissolving her marriage to Justin Gadberry, following a bench trial, pertaining to the disposition of two pre-embryos which were frozen after McQueen and Gadberry began the process of in vitro fertilization ("IVF"). The trial court's judgment found the frozen pre-embryos are marital property of a special character , awarded the frozen pre-embryos to Gadberry and McQueen jointly, and ordered that "no transfer, release, or use of the frozen [pre-]embryos shall occur without the signed authorization of both [Gadberry] and [McQueen]." The trial court also found "[Gadberry's] and [McQueen's] fundamental constitutional rights to privacy and equal protection under the 14th Amendment to the U.S. Constitution will be violated if either is forced

507 S.W.3d 133

to procreate against his or her wishes." We affirm the trial court's judgment because we do not find it erroneous under the circumstances of this case.1


A. Relevant Procedural Posture and Evidence Presented at Trial

McQueen and Gadberry married on September 2, 2005. The parties separated sometime in September 2010, and on October 11, 2013, McQueen filed a petition for dissolution of marriage against Gadberry in the Circuit Court of St. Louis County. Gadberry then filed an answer and counter-petition for dissolution of marriage. The only disputed issue during the parties' divorce proceedings was the disposition of the two frozen pre-embryos.2

On May 19, 2014, the trial court, over Gadberry's objection and apparently sua sponte , appointed a guardian ad litem ("GAL") for the frozen pre-embryos.3 The trial court subsequently held a two-day bench trial on September 10th and 12th of 2014 at which McQueen and Gadberry both testified and appeared with counsel. The GAL was also present at the trial and briefly questioned McQueen. However, the GAL did not question Gadberry, the GAL did not testify, and the GAL did not submit an oral or written recommendation regarding the disposition of the frozen pre-embryos. The following evidence was presented at trial.

1. The Context of McQueen's and Gadberry's Decision to Use IVF

Early in the parties' marriage, Gadberry was in the U.S. Army and was about to be deployed to Iraq. The parties discussed their concerns about having children due to Gadberry's upcoming deployment and McQueen's age. Prior to Gadberry's deployment, he met with McQueen's doctor and produced semen specimens which were frozen.

Gadberry was deployed in Iraq from November 2005 through November 2006. During that timeframe, including when Gadberry was "under combat missions continuously," McQueen, who was living in the St. Louis area, initiated discussions with Gadberry about beginning the process of IVF. At some point, both parties agreed to have pre-embryos created from Gadberry's frozen semen and McQueen's eggs via IVF. The parties' decision to begin the process of IVF did not occur because McQueen had any issues relating to infertility but occurred because the parties were geographically separated as a result of Gadberry's active military service.

Sometime between February and April of 2007, while Gadberry was stationed at Fort Bragg, North Carolina and McQueen was in the St. Louis area, four pre-embryos were created from McQueen's eggs

507 S.W.3d 134

and Gadberry's sperm via IVF.4 Gadberry testified he agreed to begin the process of IVF with McQueen, he agreed for pre-embryos to be created from his sperm and McQueen's eggs, and he intended to have children from the process. The parties do not dispute that at the time the pre-embryos were created, there was no agreement or express recording of the parties' intentions regarding the number of pre-embryos to be created, if or when implantation of any or all would occur, or any procedure for addressing excess or unused pre-embryos. Additionally, neither party testified Gadberry explicitly agreed to the creation of four pre-embryos. In fact, Gadberry testified he did not have any discussions with McQueen's doctor regarding the creation of the four pre-embryos, and McQueen testified that prior to their separation in September 2010, the parties did not discuss how many children they wanted to have.

After the four pre-embryos were created from McQueen's eggs and Gadberry's sperm via IVF, two pre-embryos were implanted in McQueen in an attempt for McQueen to have successful pregnancies and the parties to potentially have children. As a result of the implantation of the two pre-embryos, McQueen became pregnant and, in November 2007, she gave birth to twin boys, T.G. and B.G. The remaining two pre-embryos, which are the subject of this appeal, were cryogenically preserved and initially stored at a cryobank facility connected to McQueen's doctor's office in the St. Louis area.5

507 S.W.3d 135

2. The Transfer of the Frozen Pre–Embryos to another Cryobank Facility

Sometime in 2010, the parties received a notice stating McQueen's doctor's office in the St. Louis area was closing and that the frozen pre-embryos would need to be transferred to another cryobank facility. McQueen's doctor referred McQueen and Gadberry to Fairfax Cryobank, a company which has cryobank facilities in states other than Missouri. Fairfax Cryobank required a set of documents (collectively "Documents"), including a document titled "Fairfax Cryobank Directive Regarding the Disposition of Embryos" ("Directive"), to be completed and returned before the frozen pre-embryos could be shipped to one of its cryobank facilities.

The parties completed all of the Documents including the Directive6 and returned them to Fairfax Cryobank in the mail. Subsequently, the frozen pre-embryos were transferred to a storage facility in Virginia where they are currently stored.7

3. Whether the Parties Had Pre–Separation Discussions about the Disposition of the Frozen Pre–Embryos in the Event of Separation or Divorce and Each Party's Requested Relief at Trial

There is conflicting evidence whether the parties had discussions prior to their separation about what they wanted to happen with the frozen pre-embryos if they were to separate or divorce. Although McQueen testified that prior to their separation the parties did not discuss how many children they wanted to have, McQueen also testified she discussed options with Gadberry and they both decided they wanted the frozen pre-embryos to be used by McQueen if the parties were to become separated or divorced.

On the other hand, Gadberry testified he and McQueen did not discuss what they wanted to happen with the frozen pre-embryos if they were to separate or divorce. He specifically testified there were no such discussions, (1) between the time of the birth of the parties' sons T.G. and B.G. in November 2007 and May 15, 2010; (2) on May 15, 2010 or May 21, 2010 (two dates appearing on the Directive) or any time in between those two dates; or (3) any time before the parties separated in September 2010.

At trial, McQueen testified the only disposition she would deem acceptable was for the trial court to award the frozen pre-embryos to her because she wanted to implant them in an attempt to have successful pregnancies and potentially have more children with Gadberry.8 McQueen also testified that although she and Gadberry

507 S.W.3d 136

had problems communicating since their separation and had problems co-parenting T.G. and B.G., their co-parenting of T.G. and B.G. was "getting better," and she still wanted to attempt to potentially have more children with him.

On the other hand, Gadberry requested that the trial court not award the frozen pre-embryos to McQueen because he did not want to potentially have any more children with her. Gadberry testified he did not believe he and McQueen could successfully co-parent any additional children born as a result of any implantation of the frozen pre-embryos in part because the parties had "extreme difficulties" co-parenting their sons T.G. and B.G. Further, Gadberry testified he would deem one of four options acceptable, (1) for the frozen pre-embryos to be donated to an...

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