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Creating embryos through IVF can bring hope to a growing family, but if your relationship ends, deciding what happens to those embryos can be difficult. It’s a legal issue as well as a complex emotional situation. Worse, Missouri doesn’t have clear laws addressing the custody or control of frozen embryos during a divorce or separation. The outcome often depends on consent forms, court decisions, and your specific legal arguments.
This deeply personal issue requires careful strategy. Whether you want to preserve the option of future parenthood or prevent your genetic material from being used without your consent, you need experienced legal guidance to protect your rights.
Grant, Miller & Smith, LLC can help you navigate this complex part of family law. Call today to discuss your situation and explore your options.
Missouri courts regard embryos as somewhere between property and people. This in-between status makes these cases especially challenging. Unlike most marital property, embryos can’t simply be divided or sold. They also don’t have full legal personhood, which means courts must carefully weigh the rights and interests involved.
Missouri law dictates that life begins at conception . However, in McQueen v. Gadberry , the Missouri Court of Appeals upheld a lower court ruling that two frozen pre-embryos created through IVF during a marriage should be classified as marital property of a “special character,” rather than as children. This classification meant that the embryos could not be used, transferred, or destroyed without the signed consent of both parties.
The couple in question had created four embryos while married. Two were implanted and resulted in twins. The other two remained frozen. During the divorce, McQueen wanted to use the remaining embryos to have more children, while Gadberry did not.
The court found no enforceable agreement between the parties dictating what to do with the embryos in the event of divorce.
The classification of the embryos as marital property respected both parties’ Constitutional rights: Gadberry’s right not to procreate and McQueen’s right to procreate. The court found that McQueen did not have the right to procreate with Gadberry specifically. Although Missouri law generally requires courts to divide marital property, the unique circumstances justified the embryos being awarded jointly.
If you’re facing or want to avoid this kind of dispute, you’ll need an attorney who understands the legal uncertainties and knows how to build a strong case in a legal gray area. Grant, Miller & Smith, LLC can review your situation, explain your options, and advocate to protect your rights and interests.
Most fertility clinics require you and your partner to sign consent forms before starting IVF. These forms usually cover what will happen to your embryos in different scenarios, such as death, divorce, or long-term storage. Even if you’ve already made choices about whether to preserve, donate, or discard the embryos, the end of a relationship can change things.
Missouri courts may treat these forms as enforceable contracts. If the agreement is clear, voluntarily signed, and doesn’t conflict with public policy, a judge may rely on it to decide what happens to your embryos.
However, things can get more complicated if one person changes their mind:
What you can do:
These forms can govern embryo disputes, but they don’t always decide the outcome.
If you and your partner can’t agree on what to do with your embryos, the issue may become part of your divorce case, just like any other unresolved dispute. However, disagreements often involve religious, ethical, or medical concerns. One party may view the embryos as potential life with moral value, while the other sees them in clinical terms.
Disputes can also involve what to do with the embryos if neither party wants to use them. Should they be donated to another couple, to research, or destroyed? If the embryos remain frozen during the divorce, who is responsible for paying ongoing storage fees? Courts may address this as part of the overall property and debt division.
Courts in Missouri may:
Missouri judges have broad discretion in these cases, and there is no guaranteed outcome. However, prospective parents should know that the Missouri state government has introduced two bills to codify what to do with embryos. Both bills would require the courts to consider the “best interests of the embryo” and grant “custody” to the person who “intends to develop the embryo to birth.” While the legislation has stalled since its first introduction in 2017, similar bills could be passed in the future. An experienced attorney can help you understand current laws and anticipate future updates, thus avoiding potential pitfalls.
If you’re preparing to start IVF, consider what happens beyond the medical process. Work with your clinic and an attorney to draft a clear, forward-looking agreement. These decisions may seem distant, but planning ahead can prevent costly and emotional disputes later on.
If you’re already going through a divorce, include embryo disposition in your settlement agreement. Don’t wait for the issue to surface unexpectedly in court. Judges won’t automatically rule in a way that feels “fair” to both sides. Without a clear agreement, you risk losing control over the decision, or facing a lengthy legal fight. Even if you’ve already divorced, courts can step in after the fact if no agreement was made and a dispute arises.
Embryo cases often require a mix of family law experience, contract analysis, and understanding the rights at stake, particularly the right to procreate or decline parenthood.
The attorneys at Grant, Miller & Smith, LLC can help you assess whether your fertility agreements are likely to hold up in court and what legal options you have if no agreement exists. We understand how to frame your position clearly and persuasively, whether in negotiations or litigation.
With a strong reputation for trial readiness, our firm is well-positioned to handle sensitive and contested matters like embryo disputes. Our preparation goes beyond paperwork. We build each case around the facts, the law, and your long-term goals. When courts are asked to resolve issues without clear legal guidelines, presenting a thoughtful and well-supported argument can make all the difference.
Grant, Miller & Smith, LLC brings extensive courtroom experience and strong legal knowledge to this evolving area of family and reproductive law. Contact us today to learn more about your rights and options.