              In the Missouri Court of Appeals
                      Eastern District
                                            DIVISION THREE

JALESIA MCQUEEN,                                         )       No. ED103138
                                                         )
        Appellant,                                       )       Appeal from the Circuit Court
                                                         )       of St. Louis County
        vs.                                              )       13SL-DR06185
                                                         )
JUSTIN GADBERRY,                                         )       Honorable Douglas R. Beach
                                                         )
        Respondent.                                      )       Filed: November 15, 2016

        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

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

1
  McQueen has filed a motion to strike a purported “Exhibit A” filed by Gadberry in this appeal (“McQueen’s
motion”). McQueen’s motion, which was taken with the case, alleges the purported exhibit was not a part of the
trial court record, is unauthenticated, and was filed in this Court without leave. We grant McQueen’s motion.
                                          I.      BACKGROUND

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.




2
  McQueen and Gadberry reached an agreement regarding issues relating to the legal and physical custody of their
sons T.G. and B.G. (who were born during the parties’ marriage), child support for T.G. and B.G., maintenance, and
the distribution of certain marital property and debt.
3
  A Family Court Commissioner (“Commissioner”) was initially assigned to hear this case. The Commissioner
appointed the GAL, held a bench trial, and issued orders, findings, and recommendations, which were each adopted
by and confirmed as the judgment of the trial court. For ease of reference, we refer simply to the trial court
throughout this opinion.
                                                        2
         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 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

4
  In this case, there was no evidence introduced at trial with respect to the science of IVF, related scientific terms, or
the division or cell stages of the frozen pre-embryos at issue in this case. However, it appears the parties do not
dispute the facts or science concerning the stages of development involved in IVF. As explained in American Law
Reports:
           . . . Typically the [IVF] procedure begins with hormonal stimulation of a woman’s ovaries to
           produce multiple eggs. The eggs are then removed by laparoscopy or ultrasound-directed needle
           aspiration and placed in a glass dish, where sperm are introduced. Once a sperm cell fertilizes the
           egg, this fusion, or pre-zygote, divides until it reaches the four-to-eight cell stages, after which
           several pre-zygotes are transferred to the woman’s uterus by a cervical catheter. If the procedure
           succeeds, an embryo will attach itself to the uterine wall, differentiate, and develop into a fetus. As
           an alternative to immediate implantation, pre-zygotes may be cryopreserved indefinitely in liquid
           nitrogen for later use. ‘Pre-embryo’ is a medically accurate term for a zygote or fertilized egg that
           has not been implanted in a uterus. It refers to the approximately 14-day period of development
           from fertilization to the time when the embryo implants in the uterine wall and the ‘primitive streak,’
           the precursor to the nervous system, appears. An embryo proper develops only after implantation.
           The term ‘frozen embryos’ is a term of art denoting cryogenically preserved pre-embryos.
Elizabeth A. Trainor, Annotation, Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre-
embryo, or Pre-zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R.5th 253 (originally published
in 2001). In addition, egg and sperm are collectively referred to as “gametes.” Jeter v. Mayo Clinic Arizona, 121
P.3d 1256, 1266 (Ariz. Ct. App. 2005). Based on the foregoing, we will refer to pre-zygotes not yet transferred to a
uterus as “pre-embryos” and pre-zygotes which have been cryogenically preserved as “frozen pre-embryos” for
purposes of this opinion. We will also sometimes refer to individuals who provide their respective eggs and sperm
for the creation of pre-embryos via IVF as “gamete providers.”
                                                            3
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

         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


5
  In a pre-trial deposition, McQueen testified that in 2007, the parties signed documents with the cryobank facility in
the St. Louis area which provided she “would get” the frozen pre-embryos in the event the parties divorced.
However, Gadberry testified at trial that he did not recall signing such documents in 2007. In addition, no written
evidence was introduced at trial regarding any documents the parties allegedly signed in 2007. Moreover, McQueen
does not argue on appeal that her deposition testimony concerning the alleged 2007 documents governs the outcome
of this case, and therefore, any alleged agreement which took place in 2007 is not at issue in this appeal.
                                                          4
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 Directive 6 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.




6
  The evidence adduced at trial pertaining to the parties’ completion of the Documents including the Directive will
be set out in detail in Section II.E.1.c. of this opinion.
7
  For purposes of this appeal only, we will assume the frozen pre-embryos were transferred to and are currently
stored at the Fairfax Cryobank facility in Virginia, because this is consistent with assertions in both parties’ briefs
and a finding in the trial court’s judgment. However, we note McQueen’s pre-trial deposition testimony indicates
there was some confusion as to whether the frozen pre-embryos were transferred to and stored at the Fairfax
Cryobank facility in Virginia or Pennsylvania.
                                                            5
         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 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 infertile couple, preferably outside of the St. Louis area; (2) for the frozen pre-

embryos to be donated to science; (3) for the frozen pre-embryos to be destroyed; or (4) for the

frozen pre-embryos to remain in their status quo of being frozen and stored until the parties could

agree upon a disposition.




8
  At various places in this opinion, this Court refers to each party’s wishes regarding whether or not they want to
potentially have more children “with” the other. We recognize this may not be perfect terminology under the
circumstances of this case because the parties have divorced, and therefore, they are no longer “with” each other in
the sense of being married or in a committed relationship. Nevertheless, our use of language referring to each
party’s wishes regarding whether or not they want to potentially have more children “with” the other is an attempt to
recognize that if embryos were to develop and then children were to be born as a result of implantation of the
remaining two pre-embryos, both parties would be the biological parents to those children.
                                                         6
         4.       Relevant Arguments Raised by the Parties during the Trial Court
                  Proceedings

         The parties made the following arguments during the trial court proceedings. 9 McQueen

argued the trial court should award “custody” of the frozen pre-embryos to her because

“Missouri law . . . recognizes an embryo is a person with protectable rights in life, health and

well-being from the moment of conception onward, unless such protection is barred by the U.S.

Constitution and decisional interpretation thereof. Section 1.205 [RSMo 2000].” 10 In other

words, McQueen essentially argued the frozen pre-embryos should be classified as children

under Missouri’s dissolution statutes (Chapter 452) because they are considered persons under

section 1.205. Alternatively, McQueen argued that if the frozen pre-embryos should be

classified as property under Chapter 452, the Directive entered into by her and Gadberry was a

valid and enforceable agreement requiring the trial court to award the frozen pre-embryos to her.

McQueen also claimed the GAL did not fulfill her legal duties.

         In contrast, Gadberry asserted awarding the frozen pre-embryos to McQueen, who

intended to implant them, would force him to procreate against his wishes and therefore would

violate his fundamental constitutional rights to privacy and equal protection under the 14th

Amendment to the U.S. Constitution. Gadberry also argued that the trial court should find the

Directive invalid and unenforceable under the circumstances of this case, the court should

consider the frozen pre-embryos to be marital property under Chapter 452, and the court should



9
  All of the arguments discussed in this subsection were raised prior to the trial court’s judgment, except for
McQueen’s claim that the GAL did not fulfill her legal duties which was raised for the first time in McQueen’s post-
trial motion. In their briefs, McQueen and Gadberry each make technical arguments asserting the other party failed
to preserve various issues discussed in this appeal, including some of those set out in this subsection. Given the
importance of the issues of first impression raised in this appeal, we assume all of the parties’ arguments advanced
during the trial court proceedings and to this Court are preserved for purposes of this opinion only. Similarly, we
exercise our discretion to review both parties’ claims. See State v. Holcomb, 956 S.W.2d 286, 291 (Mo. App. W.D.
1997) (finding an appellate court has discretion to review a party’s claim on appeal even if a party has arguably not
adequately preserved the claim).
10
   Unless otherwise indicated, all further statutory references are to RSMo 2000.
                                                         7
award the frozen pre-embryos to Gadberry and McQueen jointly and order that no transfer,

release, or use of them shall occur without the signed authorization of both parties.

B.       The Trial Court’s Judgment and McQueen’s Post-Trial Motion

         On April 13, 2015, the trial court entered a judgment finding the frozen pre-embryos are

marital property of a special character, awarding the frozen pre-embryos to Gadberry and

McQueen jointly, and ordering that “no transfer, release, or use of the frozen [pre-]embryos shall

occur without the signed authorization of both [Gadberry] and [McQueen].” In making that

determination, the court made several findings of fact and conclusions of law. The trial court

found the frozen pre-embryos should not be classified as children under Chapter 452; Missouri

Courts and the Missouri Legislature have provided no guidance concerning issues relating to the

frozen pre-embryos; and “[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 to procreate against his or her wishes.” The court also made multiple findings

supporting the conclusion that the Directive was not a valid and enforceable agreement between

the parties which required the frozen pre-embryos to be awarded to McQueen. 11

         McQueen subsequently filed a post-trial motion raising the claims she brings in this

appeal, which the trial court denied. McQueen appeals.

                                              II.      DISCUSSION

         McQueen raises three points on appeal. In her first point, McQueen asserts the trial court

erred in classifying the frozen pre-embryos as marital property of a special character instead of

children under Chapter 452. In her second point, McQueen argues the trial court erred in failing

to require the GAL to advocate for the “best interests” of the frozen pre-embryos. And in her



11
  The trial court’s specific findings regarding the validity and enforceability of the Directive will be discussed in
Section II.E.1.e. of this opinion.
                                                           8
third point, McQueen contends that, assuming the frozen pre-embryos were appropriately

characterized as property of a special character, the trial court erred in awarding the frozen pre-

embryos to the parties jointly.

A.       The Sensitive Yet Strictly Legal Nature of this Case

         Before addressing the merits of McQueen’s points on appeal, it is important to initially

note that this Court recognizes the sensitive nature of this case and the differing personal beliefs

it evokes – ethical, religious, and philosophical – pertaining to scientific advancements in

reproductive technology, procreational choice, and the age-old and disputed question of when

life begins. Those issues are not for this Court to decide. See In re Marriage of Witten, 672

N.W.2d 768, 774 (Iowa 2003) (“we are not called upon to determine the religious or

philosophical status of [ ] fertilized eggs”). Instead, we are only required to decide whether

frozen pre-embryos have the legal status of children under our dissolution of marriage statutes,

see id., and whether, pursuant to our standard of review, the trial court erred in making certain

rulings and entering the disposition of this case. 12

B.       General Standard of Review

         As with any court-tried case, our Court reviews a trial court’s judgment in a dissolution

action pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Alabach v. Alabach,

478 S.W.3d 511, 513 (Mo. App. E.D. 2015). Accordingly, we will affirm the trial court’s

judgment unless there is no substantial evidence to support it, it is against the weight of the

evidence, it erroneously declares the law, or it erroneously applies the law. Id. In addition, we

view the evidence and inferences therefrom in the light most favorable to the trial court’s


12
   The issues we are required to decide in this case are difficult, in part because “[a]dvances in medical technology
have far outstripped the development of legal principles to resolve the inevitable disputes arising out of the new
reproductive opportunities now available.” J.B. v. M.B., 783 A.2d 707, 715 (N.J. 2001); see also Kass v. Kass, 696
N.E.2d 174, 178 (N.Y. 1998) (“[a]s science races ahead [in the area of assisted reproduction and IVF], it leaves in its
trail mind-numbing . . . legal questions”).
                                                          9
judgment and disregard all contrary evidence and inferences. Kropf v. Jones, 489 S.W.3d 830,

834 (Mo. App. E.D. 2015).

       While an appellate court reviews questions of law de novo, “[j]udging credibility and

assigning weight to evidence and testimony are matters for the trial court, which is free to

believe none, part, or all of the testimony of any witnesses.” St. Louis Police Leadership

Organization v. City of St. Louis, 484 S.W.3d 882, 888 (Mo. App. E.D. 2016); Kropf, 489

S.W.3d at 834 (quotations in original). Consequently, if facts relevant to a question of law are

contested, we defer to the trial court’s credibility determinations and assessment of the evidence.

City of St. Louis, 484 S.W.3d at 888; Kropf, 489 S.W.3d at 834. Our Court is also bound by the

trial court’s findings of fact so long as they are supported by substantial evidence. O’Gorman &

Sandroni, P.C. v. Dodson, 478 S.W.3d 539, 543 (Mo. App. E.D. 2015).

       Finally, in reviewing a court-tried case, an appellate court is primarily concerned with the

correctness of the trial court’s decision rather than the route taken to reach it. Id. “Therefore, we

are obliged to affirm if we determine that the trial court reached the correct result, regardless of

whether the trial court’s proffered reasons are wrong or insufficient.” Id.

C.     Whether the Trial Court Erred in Classifying the Frozen Pre-Embryos as Marital
       Property of a Special Character Instead of Children under Chapter 452

       In McQueen’s first point on appeal, she asserts the trial court erred in classifying the

frozen pre-embryos as marital property of a special character instead of children under Chapter

452. While it is undisputed Chapter 452 does not expressly refer to frozen pre-embryos or

declare they are property or children for purposes of dissolution proceedings, McQueen asserts

the trial court should have classified the frozen pre-embryos as children because section 1.205,




                                                 10
which declares that, inter alia, life begins at conception, applies to frozen pre-embryos. 13 See

section 1.205.1(1). In response, Gadberry contends applying section 1.205 to frozen pre-

embryos would violate his constitutional right to privacy, right to be free from governmental

interference, and right not to procreate. Gadberry also maintains that the trial court properly

classified the frozen pre-embryos as marital property of a special character.

         1.        The Standard of Review and General Law for Point I

         The parties’ arguments pertaining to McQueen’s first point on appeal involve issues of

statutory interpretation and the constitutionality of the application of a statute, which are

questions of law this Court reviews de novo. Matter of Adoption of E.N.C., 458 S.W.3d 387, 394

(Mo. App. E.D. 2014). Our primary rule in interpreting statutes is to determine the intent of the

legislature from the language used, to give effect to that intent if possible, and to consider the

words used in their plain and ordinary meaning. Bolt v. Giordano, 310 S.W.3d 237, 242 (Mo.

App. E.D. 2010). “[I]n determining legislative intent, [a] statute is read as a whole and in pari

materia with related sections.” Dodson v. City Of Wentzville, 216 S.W.3d 173, 177 (Mo. App.

E.D. 2007) (quoting Lane v. Lensmeyer, 158 S.W.3d 218, 226 (Mo. banc 2005)). Pursuant to the

doctrine of in pari materia, consistent statutes relating to the same subject matter are to be



13
   We note that a substantial amount of statutory language in Missouri’s dissolution statutes supports the conclusion
the use of words “child” and “children” refer to those who have been born. See, e.g., section 452.375.2 RSMo Supp.
2012 (in determining custody in accordance with the best interests of the child, “[t]he court shall consider all
relevant factors including . . . (5) [t]he child’s adjustment to the child’s home, school, and community . . . and (8)
[t]he wishes of a child as to the child’s custodian”); section 452.305.3 RSMo Supp. 2010, section 509.520.2(3)
RSMo Supp. 2010, and section 509.520.3(3) RSMo Supp. 2010 (parties filing petitions or motions in a dissolution
of marriage action and responding parties “shall file a confidential case filing sheet . . . which provides . . . [t]he
names, dates of birth, and Social Security numbers of any children subject to the action”); section 452.310.2 RSMo
Supp. 2010 (“[t]he petition in a proceeding for dissolution of marriage or legal separation shall set forth . . . (4) [t]he
name, age, and address of each child, and the parent with whom each child has primarily resided for the sixty days
immediately preceding the filing of the petition . . .”); section 452.310.8 RSMo Supp. 2010 (a husband or wife’s
“proposed parenting plan shall set forth the arrangements that the party believes to be in the best interest of the
minor children and shall include . . . (1) [a] specific written schedule detailing the custody, visitation and residential
time for each child with each party including . . . (c) [t]he child’s birthday . . . (e) [t]he times and places for transfer
of the child between the parties . . . [and] (g) [a]ppropriate times for telephone access”) (emphasis added in all).

                                                            11
construed together as though they constitute one act, and we presume the statutes were intended

to be read harmoniously. BASF Corp. v. Director of Revenue, 392 S.W.3d 438, 444 (Mo. banc

2012); Lapponese v. Carts of Colorado, Inc., 422 S.W.3d 396, 402 (Mo. App. E.D. 2013).

       2.      McQueen’s Arguments Regarding Section 1.205 and Section 188.015 RSMo
               Supp. 2012

       Section 1.205 provides:

       1. The general assembly of this state finds that:

       (1) The life of each human being begins at conception;

       (2) Unborn children have protectable interests in life, health, and well-being;

       (3) The natural parents of unborn children have protectable interests in the life,
       health, and well-being of their unborn child.

       2. Effective January 1, 1988, the laws of this state shall be interpreted and construed
       to acknowledge on behalf of the unborn child at every stage of development, all the
       rights, privileges, and immunities available to other persons, citizens, and residents
       of this state, subject only to the Constitution of the United States, and decisional
       interpretations thereof by the United States Supreme Court and specific provisions
       to the contrary in the statutes and constitution of this state.

       3. As used in this section, the term “unborn children” or “unborn child” shall
       include all unborn child or children or the offspring of human beings from the
       moment of conception until birth at every stage of biological development.

       4. Nothing in this section shall be interpreted as creating a cause of action against
       a woman for indirectly harming her unborn child by failing to properly care for
       herself or by failing to follow any particular program of prenatal care.

(emphasis omitted).

       McQueen argues the legislature intended for frozen pre-embryos to be considered

children under Missouri’s dissolution statutes because, (1) section 1.205.1(1) declares that “[t]he

life of each human being begins at conception”; (2) language in section 1.205.2 implicitly refers

to unborn children as persons; and (3) section 1.205.3 states the term “unborn children” “shall

include all unborn child or children or the offspring of human beings from the moment of

conception until birth at every stage of biological development.” McQueen also relies on the
                                                 12
definitions of “unborn child” and “conception” found in section 188.015 RSMo Supp. 2012.14

Section 188.015(9) defines an “unborn child” as “the offspring of human beings from the

moment of conception until birth and at every stage of its biological development, including the

human conceptus, zygote, morula, blastocyst, embryo, and fetus[.]” Section 188.015(3) defines

“conception” as “the fertilization of the ovum of a female by a sperm of a male[.]” The

preceding definitions in section 188.015 apply to section 1.205 because both statutes relate to a

similar subject matter, were passed on the same day and as part of the same act, and refer to the

same terms. State v. Knapp, 843 S.W.2d 345, 347 n.2, 347-48 (Mo. banc 1992) (stating sections

1.205 and 188.015 were passed on the same day and as part of the same act and finding section

1.205 and another statute were in pari materia under similar reasoning).

        McQueen asserts that because the frozen pre-embryos were created after her eggs were

fertilized by Gadberry’s sperm via IVF, the frozen pre-embryos are “human beings” and “unborn

children” under sections 188.015 and 1.205 which are entitled to “protectable interests in life,

health, and well-being” and “all the rights, privileges, and immunities available to other persons .

. . of this state” under Chapter 452. See sections 1.205.1(1)-(2) and .2; sections 188.015(9) and

(3). McQueen further claims that she has “protectable interests in the life, health, and well-

being” of the frozen pre-embryos under Chapter 452. See section 1.205.1(3). McQueen’s

arguments only prevail if we find the language of section 1.205 applies to Chapter 452 under the

circumstances of this case.

        3.       Prior Case Law Interpreting and Applying Section 1.205 In Utero

        Language in sections 1.205.1(2) and .2 providing “unborn children have ‘protectable

interests in life, health, and well-being,’ and enjoy ‘. . . all the rights . . . of other persons . . .’ [ ]



14
  All further statutory references to section 188.015 are to RSMo Supp. 2012, which incorporates legislative
amendments through 2011 and which is the latest version of the statute.
                                                        13
necessarily implies that unborn children are persons . . . for purposes of section 1.205.” Knapp,

843 S.W.2d at 347 (quoting sections 1.205.1(2) and .2) (emphasis omitted and added). In

addition, “[r]eading all subsections of section 1.205 together and considering especially the

express language of [1.205.2] that ‘. . . the laws of this state shall be interpreted and construed . .

.,’ it is clear that section 1.205 is intended to apply to at least some other statutes.” Knapp, 843

S.W.2d at 347 (quoting section 1.205.2). Nevertheless, the extent to which language in section

1.205 might be used to interpret other state statutes is something which can only be determined

by Missouri Courts based on the circumstances of each case. Webster v. Reproductive Health

Services, 492 U.S. 490, 504, 506-07 (1989).

         Missouri Courts have interpreted language in section 1.205 to mean that a fetus in utero,

defined as a stage of biological development inside a woman’s uterus, is considered a person for

purposes of applying criminal and civil liability statutes against third parties for causing the

death of an unborn fetus. See State v. Wade, 232 S.W.3d 663, 665 (Mo. App. W.D. 2007);

Bailey v. State, 191 S.W.3d 52, 54-55 (Mo. App. E.D. 2005); see also section 188.015(9)

(defining unborn child as a stage of biological development including a fetus); Webster’s New

World College Dictionary 764 (5th ed. 2014) (defining “in utero” as “in, within, or while inside

the uterus”). 15

         Further, Courts have held that interpreting section 1.205 to apply to criminal and civil

liability statutes against third parties in cases where there is the death of an unborn fetus, in


15
   See also Connor v. Monkem Co., Inc., 898 S.W.2d 89, 89-90, 92 (Mo. banc 1995) (interpreting language in
section 1.205 to mean a fetus in utero is considered a person for purposes of wrongful death statute); Knapp, 843
S.W.2d at 346-50 (interpreting language in section 1.205 to mean a fetus in utero is considered a person for
purposes of involuntary manslaughter statute); State v. Rollen, 133 S.W.3d 57, 58, 61-64 (Mo. App. E.D. 2003)
(interpreting language in section 1.205 to mean a fetus in utero is considered a person for purposes of felony murder
in the second degree statute); Holcomb, 956 S.W.2d at 289-90 (interpreting language in section 1.205 to mean a
fetus in utero is considered a person for purposes of first-degree murder statute); see also State v. Kenney, 973
S.W.2d 536, 539, 544-45 (Mo. App. W.D. 1998) (interpreting language in section 1.205 to mean a fetus in utero is
considered a person for purposes of first-degree assault statute) (overruled on other grounds by State v. Withrow, 8
S.W.3d 75, 80, 80 n.5 (Mo. banc 1999)).
                                                         14
utero, is not contrary to U.S. Supreme Court precedent, specifically Roe v. Wade, 410 U.S. 113

(1973). See Webster, 492 U.S. at 491, 506 (interpreting section 1.205 to offer protections to

unborn children in tort law is permissible under Roe); Bailey, 191 S.W.3d at 53, 55 and State v.

Rollen, 133 S.W.3d 57, 58, 61, 63 (Mo. App. E.D. 2003) and State v. Holcomb, 956 S.W.2d 286,

289-93 (Mo. App. W.D. 1997) (all rejecting defendants’ arguments that interpreting section

1.205 to mean a fetus in utero is a person for criminal statutes is contrary to Roe).

       4.      The Unique Circumstances of this Case and Whether Section 1.205
               Constitutionally Applies to Frozen Pre-Embryos In Vitro

       Unlike prior cases interpreting section 1.205, the circumstances of this case do not

involve a stage of biological development in utero or the application of section 1.205 to

uninvolved third parties. Instead, this case involves frozen pre-embryos in vitro, which are

outside of McQueen’s uterus and cryogenically preserved and stored in an artificial environment.

See Webster’s New World College Dictionary 765 (5th ed. 2014) (defining “in vitro” as “outside

or isolated from the living organism and in a test tube or other artificial environment”); see also

87 A.L.R.5th 253 set out in footnote 4 (describing the beginning stages of IVF and

cryopreservation). Additionally, this case involves circumstances where one of the individuals

who provided their respective eggs or sperm for purposes of IVF (Gadberry) does not want the

frozen pre-embryos used to potentially have any more children. Further, Gadberry claims that

allowing McQueen to use the frozen pre-embryos contrary to his wishes would violate his

constitutional rights. Whether the legislature’s declarations in section 1.205, including that life

begins at conception/fertilization, constitutionally apply to frozen pre-embryos and whether

frozen pre-embryos should be considered “children” under Missouri’s dissolution statutes are

issues of first impression.

       We initially consider the Missouri Supreme Court’s discussion of the concept of in pari

materia in Connor v. Monkem Co., Inc. and section 1.205 as a whole. Connor, 898 S.W.2d 89,
                                             15
92, 92 n.8 (Mo. banc 1995); see City of Wentzville, 216 S.W.3d at 177 (in determining legislative

intent, we read a statute in pari materia with related sections and read the statute as a whole). In

Connor, a majority of the Missouri Supreme Court held a natural parent can bring a wrongful

death claim against a third party for the death of a non-viable fetus in utero. 898 S.W.2d at 90-

94.

         In making that holding, the 4-3 Court stated, “[s]ection 1.205[.2] [ ] sets out the intention

of the general assembly that Missouri courts should read all Missouri statutes in pari materia

with this section.” Id. at 92. However, the majority also stated:

         Section 1.205[.2] expressly acknowledges that it . . . is subject to the Constitution
         of the United States and decisional interpretations thereof by the United States
         Supreme Court. No party here has raised any such issue in regard to their own, or
         a derivative, constitutional right.

Connor, 898 S.W.2d at 92 n.8.

         Reconciling and giving meaning to all of the preceding statements in Connor, we hold

Missouri Courts should read all Missouri statutes in pari materia (harmoniously) with section

1.205 so long as such a reading does not violate a party’s constitutional right afforded to him or

her by the U.S. Constitution and decisional interpretations thereof by the U.S. Supreme Court. 16

See Connor, 898 S.W.2d at 92, 92 n.8; Lapponese, 422 S.W.3d at 402. This holding is consistent

with reading section 1.205 as a whole and considering the express language in section 1.205.2,

which provides:

         . . . the laws of this state shall be interpreted and construed to acknowledge on
         behalf of the unborn child at every stage of development, all the rights, privileges,
         and immunities available to other persons, citizens, and residents of this state,
         subject only to the Constitution of the United States, and decisional interpretations
         thereof by the United States Supreme Court . . ..”



16
  The plain and ordinary meaning of section 1.205 reflects it should also not be read in pari materia with other
Missouri statutes when there are “specific provisions to the contrary in the statutes and constitution of this state.”
Section 1.205.2.
                                                           16
(emphasis added).

        In other words, the declarations of the Legislature in section 1.205 that life begins at

conception, and which attempt to assign privileges and rights to various stages of biological

development, “cannot be viewed in a vacuum” and “[are] not absolute”; rather, they must be

construed “in the total context of section 1.205 and in the light of . . . the continuing holdings of

the Supreme Court of the United States.” State v. O’Brien, 784 S.W.2d 187, 191 (Mo. App. E.D.

1989). When so construed, the Legislature’s declarations are qualified by, and subject to, the

decisions of the U.S. Supreme Court, including but not limited to holdings that a woman’s right

to an abortion remains a constitutionally protected right. See id.

        In this case, Gadberry claims that applying the Legislature’s declarations in section

1.205, including that life begins at conception/fertilization, to the frozen pre-embryos would

violate his fundamental constitutional rights recognized in a line of U.S. Supreme Court cases,

specifically, his constitutional right to privacy, right to be free from governmental interference,

and right not to procreate. For the reasons discussed below, we agree.

                a.      Relevant U.S. Supreme Court Precedent and Interpretation Thereof

        The right to privacy is not explicitly mentioned in the U.S. Constitution; however, in a

line of decisions going back to the late 1800’s, the U.S. Supreme Court “has recognized that a

right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the

Constitution.” Roe, 410 U.S. at 152. The roots of the right to privacy are found in the

penumbras of the Bill of Rights and in various amendments to the U.S. Constitution, including

the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. Id. at

152-53; see Meyer v. Nebraska, 262 U.S. 390, 399 (1923); U.S. Const. amend. XIV, section 1

(“[n]o [s]tate shall . . . deprive any person of life, liberty, or property, without due process of

law”). The right of privacy inherent in the U.S. Constitution’s concept of personal liberty has

                                                  17
been referred to as an individual’s “right to be let alone” from the government and “the most

comprehensive of rights.” Davis v. Davis, 842 S.W.2d 588, 599 (Tenn. 1992) (quoting Olmstead

v. U.S., 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).

       The right of personal privacy extends to intimate activities and decisions relating to

marriage, procreation, contraception, and family relationships. Roe, 410 U.S. at 152. The

decision whether or not to use contraception, to avoid procreation, is protected by and “concerns

a relationship lying within the zone of privacy created by several fundamental constitutional

guarantees.” Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965). Moreover, “[i]f the right of

privacy means anything, it is the right of the individual, married or single, to be free from

unwarranted governmental intrusion into matters so fundamentally affecting a person as the

decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). In

sum, U.S. Supreme Court decisions interpreting the U.S. Constitution provide a citizen’s

fundamental, individual right to procreational autonomy is inherent in the U.S. Constitution’s

concept of personal liberty and that a citizen has the right to be free from governmental

interference with his or her procreational decisions. J.B. v. M.B., 783 A.2d 707, 715-16 (N.J.

2001); Davis, 842 S.W.2d at 598-99, 600-01. These rights have been reaffirmed as recently as

2015 in Obergefell v. Hodges, in which the Supreme Court held “[c]hoices concerning

contraception, family relationships, procreation, and childrearing” “are protected by the

Constitution” and are “among the most intimate [decisions] that an individual can make.” 135

S.Ct. 2584, 2599.

       As explained by the Tennessee Supreme Court in Davis, another case involving a dispute

over the disposition of frozen pre-embryos in a dissolution proceeding, “the right of

procreational autonomy is composed of two rights of equal significance – the right to procreate

and the right to avoid procreation.” 842 S.W.2d at 589, 592, 601. In addition, “[t]he equivalence

                                                 18
of and inherent tension between these two interests are nowhere more evident than in the context

of [pre-embryos created via IVF].” Id. at 591-92, 601.

         Furthermore, where the disposition of frozen pre-embryos are in dispute, and therefore,

only the beginning stages of IVF have taken place and a pre-embryo has not been transferred to

and implanted in a woman’s uterus, “[n]one of the concerns about a woman’s bodily integrity

that have previously precluded men from controlling abortion decisions is applicable [ ].” Id. at

601. 17 This is because the U.S. Supreme Court has recognized that when a woman is pregnant,

her constitutional right to terminate the pregnancy is grounded in her liberty and privacy interests

in procreative freedom and her basic right to bodily integrity. See Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 857 (1992) (referring to Roe as not only a

rule “of personal autonomy and bodily integrity” but also “an exemplar of Griswold liberty”).

         Importantly, “constitutional developments [after Roe] have neither disturbed, nor do they

threaten to diminish, the scope of recognized protection accorded to the liberty relating to . . .

decisions about whether or not to beget or bear a child.” Id. Accordingly, where a woman is not

pregnant, both gamete providers involved in the beginning stages of IVF “stand on the brink of

potential parenthood,” and the woman and man “must be seen as entirely equivalent gamete

providers,” each of whom have a fundamental, individual right to procreational autonomy.

Davis, 842 S.W.2d at 600-01, 603. The existence of this right to procreational autonomy

necessarily dictates that decisions affecting the gamete providers’ individual reproductive status

rests in the gamete providers alone. Id. at 602. Further, no other third party or entity, including a

legislature or court, has an interest sufficient to permit interference with the gamete providers’


17
  See Davis, 842 S.W.2d at 601 n.24 (“[i]nasmuch as it is the woman who physically bears the child and who is the
more directly and immediately affected by the pregnancy, as between [her and the man], the balance weighs in her
favor”) (quoting Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 71 (1976)); see also Danforth,
428 U.S. at 69 (“the [s]tate cannot delegate to a spouse a veto power which the state itself is absolutely and totally
prohibited from exercising during the first trimester of pregnancy”).
                                                          19
decision to continue, terminate, or suspend the IVF process, “because no one else bears the

consequences of these decisions in the way that the gamete providers do.” Id.

         When, as in this case, one party wishes to continue the IVF process, the other does not,

frozen pre-embryos remain in storage, and a court determines there is no valid and enforceable

agreement between the parties concerning the disposition of the frozen pre-embryos upon

divorce, 18 courts of other states have resolved the dispute by balancing the relative interests of

the parties in using or not using the frozen pre-embryos. J.B., 783 A.2d at 708, 712-14, 716-17;

Davis, 842 S.W.2d at 589, 590, 603-04. Because this approach takes into account each party’s

right of procreational autonomy and the circumstances of each particular case, we find it relevant

to our consideration of whether an application of section 1.205 to Missouri’s dissolution statutes

would be contrary to U.S. Supreme Court decisions interpreting the U.S. Constitution. See J.B.,

783 A.2d at 716-17; Davis, 842 S.W.2d at 603-04.

                  b.       Application of Constitutional Principles to the Facts of this Case

         We first consider each of the parties’ positions and interests under the circumstances of

this case.

                           i.       The Parties’ Positions and Interests

         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. After Gadberry agreed for two pre-embryos

partially consisting of his sperm and partially consisting of McQueen’s eggs to be implanted in

McQueen, McQueen had successful pregnancies and gave birth to T.G. and B.G. In addition,




18
  See Section II.E.1. below, where we affirm the trial court’s conclusion that there was no valid and enforceable
agreement between McQueen and Gadberry concerning the disposition of the frozen pre-embryos upon divorce
under the circumstances of this case.
                                                         20
McQueen had another successful pregnancy and gave birth to a third child, conceived through

traditional means with a man other than Gadberry, after the parties separated.

       McQueen wishes to continue the IVF process with respect to the frozen pre-embryos and

implant them in an attempt to have successful pregnancies and potentially have more children

with Gadberry, and she testified this is the only disposition she would deem acceptable.

McQueen also testified that although she and Gadberry 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.

       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. Gadberry also testified he would deem one of

four options acceptable, (1) for the frozen pre-embryos to be donated to an infertile couple,

preferably outside of the St. Louis area; (2) for the frozen pre-embryos to be donated to science;

(3) for the frozen pre-embryos to be destroyed; or (4) for the frozen pre-embryos to remain in

their status quo of being frozen and stored until the parties could agree upon a disposition.

                       ii.    Analysis

       We balance the interests of the parties in this case because the frozen pre-embryos are

still in vitro and have not been transferred to or implanted in McQueen’s uterus, and therefore,

the disposition of the frozen pre-embryos does not implicate McQueen’s right to bodily integrity

in the area of reproductive choice under Roe which would outweigh any of Gadberry’s interests

in avoiding parenthood. See Casey, 505 U.S. at 857; Danforth, 428 U.S. at 69, 71; Davis, 842

S.W.2d at 601, 601 n.24. Further, McQueen and Gadberry both “stand on the brink of potential

                                                 21
parenthood,” and, because McQueen is not pregnant, McQueen and Gadberry “must be seen as

entirely equivalent gamete providers,” each of whom have a fundamental, individual right to

procreational autonomy. Davis, 842 S.W.2d at 600-01, 603.

         Although McQueen has a right to procreate, that does not mean she has a right to

procreate with Gadberry by implanting the frozen pre-embryos which contain his genetic

material. As previously discussed, the parties did not begin the process of IVF because

McQueen had any infertility issues and McQueen has been able to achieve parenthood. 19

Perhaps most importantly, the trial court’s disposition in this case does not completely foreclose

the possibility of McQueen implanting the frozen pre-embryos and achieving parenthood by their

use at some point in the future. The trial court did not order the frozen pre-embryos to be

destroyed, donated to another couple, or donated for purposes of scientific research; instead, the

trial court awarded the frozen pre-embryos to McQueen and Gadberry jointly and ordered “no

transfer, release, or use of the frozen [pre-]embryos shall occur without the signed authorization

of both [Gadberry] and [McQueen].” Pursuant to the terms of the court’s judgment, McQueen

19
   Therefore, this case can be distinguished from those where appellate courts in other states have upheld a trial
court’s award of frozen pre-embryos to a woman who intended to implant them because the parties’ decision to
begin the process of IVF was due to the woman’s anticipated infertility and the frozen pre-embryos were the
woman’s last and only chance at achieving parenthood. See Szafranski v. Dunston, 34 N.E.3d 1132, 1136-38, 1148,
1161-63 (Ill. App. Ct. 2015) (upholding trial court’s conclusion under balancing-of-interests test that girlfriend’s
interest in using frozen pre-embryos outweighed any interest boyfriend had in preventing their use where, inter alia,
the parties agreed to create pre-embryos via IVF due to expectation girlfriend would suffer infertility as a result of
chemotherapy treatment and frozen pre-embryos “represent[ed] [the girlfriend’s] last and only opportunity to have a
biological child with her own eggs”); Reber v. Reiss, 42 A.3d 1131, 1132, 1134, 1136-42 (Pa. Super. Ct. 2012)
(upholding trial court’s conclusion under balancing-of-interests test that “[w]ife’s inability to achieve biological
parenthood without the use of the pre-embryos is an interest which outweighs [h]usband’s desire to avoid
procreation” where, inter alia, the parties agreed to create pre-embryos via IVF to preserve wife’s ability to conceive
a child after she underwent chemotherapy treatments and frozen pre-embryos were “likely [w]ife’s only opportunity
to achieve biological parenthood and her best chance to achieve parenthood at all”). An application of the
balancing-of-interests test could arguably favor a woman under special circumstances where the parties’ decision to
begin the process of IVF was due to the woman’s anticipated infertility and/or the frozen pre-embryos were the
woman’s last and only chance at achieving parenthood. See Davis, 842 S.W.2d at 604. Here, however, we find an
application of section 1.205, including declarations that life begins at conception/fertilization, to frozen pre-embryos
and Missouri’s dissolution statutes under such special circumstances would be contrary to U.S. Supreme Court
decisions interpreting the U.S. Constitution because it would infringe upon the parties’ constitutional right to privacy
and right to be free from governmental interference. This is because, as explained in our discussion in this point, the
constitutionality of section 1.205 depends on the balancing of the interests of both gamete providers, each of whom
have a fundamental, individual right to procreational autonomy.
                                                          22
could implant the frozen pre-embryos at a later point in time if she and Gadberry both signed an

authorization allowing her to do so, which would allow her the possibility to achieve parenthood

by their use if she had a successful pregnancy and a child or children were born as a result. In

other words, it cannot be said that McQueen’s fundamental right to procreate would be

irrevocably extinguished if she is not awarded the frozen pre-embryos in this instant proceeding.

        Balanced against McQueen’s right to procreate and her interest in achieving further

parenthood through the use of the frozen pre-embryos is Gadberry’s right not to procreate and

his interest in avoiding future parenthood with McQueen. If the trial court were to award the

frozen pre-embryos to McQueen as she requests, it could result in the successful implantation

and gestation of the frozen pre-embryos. This possible result would impose unwanted

parenthood on Gadberry, with all of its possible life-long emotional, psychological, and financial

responsibilities. See J.B., 783 A.2d at 717 and Davis, 842 S.W.2d at 603 (similarly finding).

        Moreover, Gadberry’s fundamental right not to procreate would be irrevocably

extinguished if McQueen bears more of Gadberry’s children, a situation where Gadberry would

be forced to become a biological parent again, this time against his will. 20 See J.B., 783 A.2d at

717 (finding a spouse’s fundamental right not to procreate would be irrevocably extinguished

under similar circumstances). In addition, Gadberry would be subjected to unwarranted

governmental intrusion into the intimate decision of whether to potentially have more children.

See Eisenstadt, 405 U.S. at 453 (“[i]f the right of privacy means anything, it is the right of the

individual, married or single, to be free from unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision whether to bear or beget a child”). In contrast,

the trial court’s judgment – awarding the frozen pre-embryos to Gadberry and McQueen jointly,


20
  We are mindful that men who choose to engage in more traditional methods of procreation are sometimes
subjected to “unplanned” parenthood when the woman becomes pregnant and there is a stage of development in
utero.
                                                     23
and ordering that “no transfer, release, or use of the frozen [pre-]embryos shall occur without the

signed authorization of both [Gadberry] and [McQueen]” – subjects neither party to any

unwarranted governmental intrusion but rather leaves the intimate decision of whether to

potentially have more children to the parties alone.

       This brings us back to the questions of whether the legislature’s declarations in section

1.205, including that life begins at conception/fertilization, constitutionally apply to frozen pre-

embryos and whether frozen pre-embryos should be considered “children” under Missouri’s

dissolution statutes. Based on the foregoing, we hold that when weighed against the interests of

McQueen and Gadberry and the responsibilities inherent in parenthood, the General Assembly’s

declarations in section 1.205 relating to the potential life of the frozen pre-embryos are not

sufficient to justify any infringement upon the freedom and privacy of Gadberry and McQueen to

make their own intimate decisions. See Davis, 842 S.W.2d at 602 (similarly finding with respect

to Tennessee’s state interests). Gadberry and McQueen alone should decide whether to allow a

process to continue that may result in such a dramatic change in their lives as becoming parents.

See id. We also hold that an application of section 1.205, including declarations that life begins

at conception/fertilization, to the frozen pre-embryos and to Missouri’s dissolution statutes under

the circumstances of this case, (1) would be contrary to U.S. Supreme Court decisions

interpreting the U.S. Constitution; and (2) would violate Gadberry’s constitutional right to




                                                 24
privacy, right to be free from governmental interference, and right not to procreate. 21

Accordingly, the trial court did not err in failing to classify the frozen pre-embryos as children

under Chapter 452.

         5.       The Trial Court’s Classification of the Frozen Pre-Embryos as Marital
                  Property of a Special Character

         We now turn to McQueen’s argument which questions whether the trial court erred in

classifying the frozen pre-embryos as marital property of a special character. As previously

stated, it is undisputed the statutes in Chapter 452 do not expressly refer to frozen pre-embryos

or declare they are property for purposes of dissolution proceedings. See generally Chapter 452

RSMo.

         For purposes of Missouri’s dissolution statutes, “marital property” is generally defined as




21
   We also note applying section 1.205 to pre-embryos and frozen pre-embryos would affect intimate decisions of
gamete providers and related circumstances involving their doctors and cryobank facilities (“fertility workers”) in
situations where couples or individuals decide to destroy pre-embryos, donate them to an infertile couple, or have
them cryogenically preserved and placed in long-term or indefinite storage. Perhaps most concerning, if section
1.205 were interpreted to apply to pre-embryos and frozen pre-embryos, the State could step in and mandate
implantation of all pre-embryos and frozen pre-embryos, whether in the female gamete provider or in a State-chosen
surrogate, even if neither gamete provider wanted to use them to potentially have children. In that situation, the
State and courts would have to develop an enforcement mechanism for implantation, placing the government and
courts into the province of the personal reproductive decisions of private citizens. In addition, in the area of criminal
law, gamete providers or fertility workers could possibly be charged with and convicted of various forms of murder
and manslaughter, assault, or child abuse for intentionally or unintentionally destroying or “injuring” pre-embryos or
frozen pre-embryos and for cryogenically preserving pre-embryos and placing them in long-term or indefinite
storage. See cases other than Connor discussed in footnote 15. And in the area of civil law, (1) gamete providers or
fertility workers could be sued for wrongful death for destroying pre-embryos or frozen pre-embryos; and (2) there
could be potential problems with a couple or individuals donating pre-embryos or frozen pre-embryos to others
because donation would arguably have to be governed by Missouri’s adoption statutes, Chapter 453, which are
currently unequipped to regulate such forms of adoption. See Connor, 898 S.W.2d at 89-90, 92 (interpreting
language in section 1.205 to mean a fetus in utero is considered a person for purposes of wrongful death statute); see
generally Chapter 453 RSMo. We find these and other potential implications of applying the legislature’s
declarations in section 1.205 to pre-embryos and frozen pre-embryos are unreasonable and further support
Gadberry’s position and affirming the trial court’s judgment. See Rothschild v. State Tax Com’n of Missouri, 762
S.W.2d 35, 37 (Mo. banc 1988) (in determining legislative intent, an appellate court presumes the legislature did not
intend an absurd law and the court favors a construction of a statute that avoids unjust or unreasonable results).
However, our findings in this footnote relating to the potential implications of applying section 1.205 to pre-
embryos and frozen pre-embryos are not central to our decision nor dispositive of this appeal.
                                                          25
“all property acquired by either spouse subsequent to the marriage[.]” Section 452.330.2 22; see

Taylor v. Taylor, 12 S.W.3d 340, 344-45 (Mo. App. W.D. 2000). In addition, “property” is

defined in relevant part as “[a]ny external thing over which the rights of . . . use . . . are

exercised[.]” Black’s Law Dictionary 1232 (7th ed. 1999) (emphasis added).

         Again, this case involves frozen pre-embryos in vitro, which are outside of McQueen’s

uterus and cryogenically preserved and stored in an artificial environment; accordingly, they are

external. See Webster’s New World College Dictionary 765 (5th ed. 2014); see also 87

A.L.R.5th 253. Though frozen pre-embryos may never realize their biologic potential, even if

implanted, they are unlike traditional forms of property or external things because they are

comprised of a woman and man’s genetic material, are human tissue, and have the potential to

become born children. Davis, 842 S.W.2d at 596-97. 23 Accordingly, frozen pre-embryos are

entitled to special respect. Id.

         In this case, 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].” As the main part of this ruling

pertains to the parties’ decision-making authority over the frozen pre-embryos created

subsequent to their marriage, including but not limited to when they can exercise rights to use

them, it is consistent with the broad definitions of “marital property” and “property” set out

22
   Section 452.330.2 sets forth five exceptions to the general definition of marital property, including “(4) [p]roperty
excluded by valid written agreement of the parties[.]” In McQueen’s third point on appeal, she relies on the
preceding exception to argue she and Gadberry entered into a valid and enforceable agreement requiring the trial
court to award the frozen pre-embryos to her. This argument, which presupposes the frozen pre-embryos should
generally be classified as marital property under Chapter 452, will be discussed in detail in Section II.E.1. below,
where we affirm the trial court’s conclusion that there was no valid or enforceable agreement between McQueen and
Gadberry concerning the disposition of the frozen pre-embryos upon divorce under the circumstances of this case.
23
   See also the amicus brief filed by the American Society for Reproductive Medicine, which states in relevant part,
“The preembryo is due greater respect than other human tissue because of its potential to become a person and
because of its symbolic meaning for many people.” (citing Ethics Committee of the ASRM, The moral and legal
status of the preembryo, 62 Fertility and Sterility 33S (Nov. 1994)).
                                                          26
above. See Witten, 672 N.W.2d at 771, 776 and Kass v. Kass, 696 N.E.2d 174, 175, 179 (N.Y.

1998) (indicating that the issue in cases involving the disposition of frozen pre-embryos is

determining the parties’ decision-making authority over them); In re Marriage of Dahl and

Angle, 194 P.3d 834, 838 (Or. Ct. App. 2008) (finding a similar definition of “property” to be

“broad” and encompass rights relating to the disposition of frozen pre-embryos). And to the

extent the trial court’s judgment denominates the frozen pre-embryos as marital property of a

“special character” and essentially provides the frozen pre-embryos are to remain in their status

quo of being cryogenically preserved and stored until the parties both agree in writing as to

another disposition, the judgment is consistent with the principle that frozen pre-embryos are

entitled to a special respect. Therefore, we hold the trial court did not err in classifying the

frozen pre-embryos as marital property of a special character.

          6.     Conclusion as to Point I

          Based on the foregoing, the trial court did not err in classifying the frozen pre-embryos as

marital property of a special character instead of children under Chapter 452. Point one is

denied.

D.        Whether the Trial Court Erred in Failing to Require the GAL to Advocate for the
          “Best Interests” of the Frozen Pre-Embryos

          In her second point on appeal, McQueen argues the trial court erred in failing to require

the GAL to advocate for the “best interests” of the frozen pre-embryos. 24 The trial court

appointed the GAL for the frozen pre-embryos over Gadberry’s objection and apparently sua

sponte. The GAL was also present at the trial and briefly questioned McQueen. However, the




24
  We note that a separate GAL was appointed to represent the interests of T.G. and B.G., before the parties reached
an agreement relating to custody and child support of those two children. Our discussion in this point on appeal
only pertains to the GAL who was appointed for the frozen pre-embryos.
                                                        27
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.

        Section 452.423 RSMo Supp. 2010 25 provides in relevant part:

        1. In all proceedings for child custody or for dissolution of marriage or legal
        separation where custody, visitation, or support of a child is a contested issue, the
        court may appoint a guardian ad litem . . ..
                                                ...
        4. The appointing judge shall require the guardian ad litem to faithfully discharge
        such guardian ad litem’s duties, and upon failure to do so shall discharge such
        guardian ad litem and appoint another . . ..

        McQueen argues the trial court did not comply with section 452.423.4 because it did not

require the GAL to advocate for the “best interests” of the frozen pre-embryos. See J.D. v. L.D.,

478 S.W.3d 514, 518 (Mo. App. E.D. 2015) (a guardian ad litem’s function is to advocate what

he or she “believes to be the best interests of the child”); Lindsey v. Lindsey, 336 S.W.3d 487,

492 (Mo. App. E.D. 2011) (“[t]he duty of a guardian ad litem is to protect the best interests of a

child”) (quotations in original). Whether a trial court erred in failing to comply with a statute is a

question of law which an appellate court reviews de novo. S.L.M. v. D.L.N., 167 S.W.3d 736,

738 (Mo. App. W.D. 2005).

        McQueen’s argument that the trial court failed to comply with section 452.423.4 is

premised on two related legal arguments, (1) the trial court should have classified the frozen pre-

embryos as “children” under Chapter 452; and (2) therefore, the trial court’s appointment of a

GAL for the frozen pre-embryos was proper at the outset. See section 452.423.1 (“[i]n all

proceedings for child custody or for dissolution of marriage or legal separation where custody,

visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem”)

(emphasis added).



25
  All further statutory references to section 452.423 are to RSMo Supp. 2010, which incorporates legislative
amendments through 2009 and which is the latest version of the statute.
                                                        28
         Both of the preceding arguments have no merit. As noted in detail in footnote 13, a

substantial amount of statutory language in Missouri’s dissolution statutes supports the

conclusion the use of words “child” and “children” refer to those who have been born. More

importantly, as we held in Section II.C.4., the trial court did not err in failing to classify the

frozen pre-embryos as children under Chapter 452. Further, because custody, visitation, or

support of children were not contested issues in this case, the trial court did not have the

authority under section 452.423.1 to appoint a GAL for the frozen pre-embryos. 26 Therefore,

McQueen’s argument that the trial court erred in failing to require the GAL to advocate for the

“best interests” of the frozen pre-embryos has no merit. Point two is denied.

E.       Whether the Trial Court Erred in Awarding the Frozen Pre-Embryos to the Parties
         Jointly

         McQueen’s third and final point on appeal raises alternative arguments to those raised in

her first and second points on appeal and assumes, as we held above in Section II.C., that the

frozen pre-embryos were appropriately characterized as property of a special character.

McQueen argues the trial court erred in awarding the frozen pre-embryos to the parties jointly

because, (1) the Directive constitutes a valid and enforceable agreement between the parties

which rendered the frozen pre-embryos to be separate property and required the trial court to

award the frozen pre-embryos to McQueen, and alternatively, (2) if the frozen pre-embryos were

appropriately characterized as marital property, the trial court was required to “divide” them and

award them to either McQueen or Gadberry.



26
   Because the GAL only participated very minimally in the case, the GAL did not make a recommendation as to the
disposition of the frozen pre-embryos, and the trial court’s judgment was based upon its classification of the frozen
pre-embryos as marital property of a special character, the trial court’s improper appointment of a GAL for the
frozen pre-embryos did not affect the outcome of the case, and therefore, it was not prejudicial. See Blue Pool
Farms, LLC v. Basler, 239 S.W.3d 687, 690 (Mo. App. E.D. 2007) (“in determining prejudice in a [court]-tried case,
the issue is whether, absent the trial error in question, the outcome of the case would have been different”)
(quotations in original).

                                                         29
           1.       Whether the Directive Constitutes a Valid and Enforceable Agreement
                    Between The Parties

           We first examine McQueen’s claim that the trial court erred in awarding the frozen pre-

embryos to the parties jointly because the Directive constitutes a valid and enforceable

agreement between the parties which rendered the frozen pre-embryos to be separate property

and required the trial court to award the frozen pre-embryos to McQueen.

                    a.       Standard of Review

           Whether a valid and enforceable agreement exists is a question of law subject to de novo

review. State ex rel. Union Pacific R. Co. v. David, 331 S.W.3d 666, 667 (Mo. banc 2011). The

classification of property as either marital or separate is also a question of law which we review

de novo. Stroh v. Stroh, 454 S.W.3d 351, 355 (Mo. App. S.D. 2014). However, we defer to the

trial court’s findings of fact and credibility determinations which underlie such a classification.

Id.; In re Marriage of Harp, 278 S.W.3d 681, 690 (Mo. App. S.D. 2008).

                    b.       Relevant Law

           Property acquired during the marriage is presumed to be marital property, but a party

may overcome this presumption if he or she shows the property is separate. Thorp v. Thorp, 390

S.W.3d 871, 876 (Mo. App. E.D. 2013); see sections 452.330.2 and .3. The burden is on the

spouse who claims the property is separate to overcome the presumption of marital property and

demonstrate by clear and convincing evidence that the property falls under one of the five

exceptions listed in section 452.330.2. Thorp, 390 S.W.3d at 876; section 452.330.2. One of the

exceptions listed in section 452.330.2 is property which is “excluded by valid written agreement

of the parties.” 27 Section 452.330.2(4). If a complaining party proves by clear and convincing

evidence that the property acquired during the marriage falls under an exception set out in



27
     This is the only exception set forth in section 452.330.2 which McQueen argues is applicable to this case.
                                                            30
section 452.330.2, the property is rendered separate. Thorp, 390 S.W.3d at 876; King v. King, 66

S.W.3d 28, 35 (Mo. App. W.D. 2001).

        “Before any property can be excluded from the term ‘marital property’ by valid

agreement of the parties under section 452.330.2(4), the evidence must clearly and unequivocally

show an agreement whereby both parties intended that the property be excluded from their

marital property.” Degerinis v. Degerinis, 724 S.W.2d 717, 720 (Mo. App. E.D. 1987). In

addition, in order for a written agreement to be considered valid and enforceable, it must, inter

alia, be entered into freely, fairly, knowingly, understandingly, and in good faith with full

disclosure. 28 Rivers v. Rivers, 21 S.W.3d 117, 122 (Mo. App. W.D. 2000). The preceding

requirement relates to the circumstances surrounding the execution of the agreement, including

the parties’ understanding of the agreement. Bell v. Bell, 360 S.W.3d 270, 279 (Mo. App. S.D.

2011). “Full disclosure” requires a spouse to reveal the nature and extent of the property

sufficiently so that the other party may make a meaningful decision whether to waive any or all

of his or her rights to the property, and whether disclosure is sufficient is determined under the

circumstances of each case. McMullin v. McMullin, 926 S.W.2d 108, 111 (Mo. App. E.D.

1996); Miles v. Werle, 977 S.W.2d 297, 301 (Mo. App. W.D. 1998).

                 c.       Evidence Regarding the Fairfax Cryobank Documents and Directive

        In this case, Fairfax Cryobank required a set of Documents, consisting of a total of fifteen

pages, to be completed and returned before the frozen pre-embryos could be shipped to one of its

cryobank facilities. Fairfax Cryobank mailed the Documents to the home of McQueen and

Gadberry sometime in early 2010. During that time, McQueen was an attorney and Gadberry

was completing his MBA. Besides some minimal account information filled in by a Fairfax



28
  This standard applies to agreements entered into before and during the marriage. Bell v. Bell, 360 S.W.3d 270,
279 (Mo. App. S.D. 2011); Lipic v. Lipic, 103 S.W.3d 144, 149 (Mo. App. E.D. 2003).
                                                        31
Cryobank employee prior to the Documents being sent to the parties’ home, McQueen filled in

virtually all of the information on the Documents including writing Gadberry’s name in some

places.

          Within the package of Documents, there exists a three-page Directive regarding the

disposition of the frozen pre-embryos. Some of McQueen’s handwriting on the Directive is in a

“bluish” ink, 29 while other portions of her handwriting are in black ink. In contrast, all of

Gadberry’s handwriting on the Directive is in black ink.

                           i.       The Third Page of the Directive

          The third page of the Directive is the signature page, which McQueen presented to

Gadberry on May 15, 2010 and both parties signed on that date. McQueen instructed Gadberry

where to sign on this page, by placing a pre-printed yellow “sign here” sticker in the appropriate

place. The third page of the Directive reflects the parties’ signatures were apparently notarized

on May 15, 2010 30 and the parties entered into and executed the Directive “willingly, and . . . as

[their] free and voluntary act for the purpose therein expressed . . . and under no constraint or

undue influence.” McQueen completed most of the information on the third page of the

Directive, including the date and names on the notary block. Gadberry testified he did not read

the Directive before he signed it because McQueen presented it to him as part of “more transfer

paperwork” and the Directive was mixed in with other Documents.




29
   The trial court found some of McQueen’s handwriting was in “bluish” ink, but this Court’s review of the
Documents reveals the ink could be described as “purplish.” In addition, McQueen acknowledged at trial that she
used a blue or purple pen when she filled out some portions of the Documents. For purposes of this appeal we will
refer to some of McQueen’s handwriting as being in a “bluish” ink because this reference is consistent with the trial
court’s finding and McQueen’s testimony.
30
   This Court’s review of the copies of the Directive filed as part of the record on appeal arguably reflect a date of
either May 5th or 15th of 2010 for the date of notarization. However, there was no testimony presented at trial
regarding a May 5, 2010 date, and that date is not referred to in the trial court’s judgment or the parties’ briefs.
Because the trial court found the signatures on the Directive “appear to be notarized on May 15, 2010,” we will
assume the parties’ signatures were notarized on that date for purposes of this appeal.

                                                          32
                       ii.     The Second Page of the Directive

       On May 21, 2010, six days after the third page of the Directive was signed and notarized,

McQueen presented the second page of the Directive to Gadberry, along with several other pages

of Documents. The second page of the Directive contains language which states in relevant part:

       In the event of separation or divorce of the partners, the embryos shall be
       disposed of by one of the following actions:
               (Note: write-in one choice listed above and both parties initial.)

       Partner Initials and Date [McQueen’s initials]      5-21-10

       Partner Initials and Date [Gadberry’s initials]     5-21-10

To the right of this section, McQueen handwrote the words, “Used by Jalesia F. McQueen.”

Accordingly, the second page of the Directive contains instructions that, in the event of the

parties’ separation or divorce, the frozen pre-embryos “shall be . . . [u]sed by Jalesia F.

McQueen.”

       McQueen testified she handwrote the preceding words in Gadberry’s presence, before he

initialed the page, and it was not possible she wrote the words after the page was initialed.

However, Gadberry testified he did not remember whether the handwritten words “[u]sed by

Jalesia F. McQueen” were on the second page of the Directive at the time he initialed it on May

21, 2010. Gadberry also testified that when McQueen presented the second page of the Directive

and several other pages of Documents to him on May 21, 2010, she told him, “Here’s some more

transfer paperwork.” As McQueen did with the third page of the Directive, she instructed

Gadberry where to initial on the second page of the Directive, placing a pre-printed yellow “sign

here” sticker in the appropriate place. The second page of the Directive was initialed and dated

by both parties at their home on May 21, 2010, when no notary was present, and six days after

the signature page of the Directive was signed and notarized. At trial, McQueen acknowledged

“the dates [on the Directive] are all off.”

                                                 33
                  d.       Evidence as to Whether the Parties Had Pre-Separation Discussions
                           about the Disposition of the Frozen Pre-Embryos in the Event of
                           Separation or Divorce

         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 (the

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.

                  e.       The Trial Court’s Findings Regarding the Documents, the Directive,
                           and the Parties’ Discussions

         In this case, the trial court found that the frozen pre-embryos were marital property and

they did not fall under the exception set forth in section 452.330.2(4). The trial court also made

the following findings supporting the conclusion that the Directive was not a valid and

enforceable agreement between the parties which required the frozen pre-embryos to be awarded

to McQueen. 31 The trial court found McQueen was “in control of the [D]ocuments” and that she

presented some pages of the Documents to Gadberry on May 15, 2010 and others to him on May



31
  Because the trial court’s findings discussed in this subsection are dispositive of McQueen’s first argument in her
third point on appeal, we will not address other extensive findings the trial court made in support of the conclusion
that the Directive was not a valid and enforceable agreement.
                                                          34
21, 2010. In addition, McQueen instructed Gadberry where to sign and initial by placing “sign

here” stickers in appropriate places on the Documents.

       The trial court also found McQueen handwrote nearly all of the information required on

all of the pages of the Documents. This information included the dates and parties’ names on the

notary block of the third, signature page of the Directive and the critical words on the right side

of the second page of the Directive which contains instructions that in the event of the parties’

separation or divorce, the frozen pre-embryos “shall be . . . [u]sed by Jalesia F. McQueen.” The

trial court further found that while McQueen’s handwriting indicating that the frozen pre-

embryos should be used by her in the event of separation of divorce was in black ink,

McQueen’s initials on that same page were in bluish ink. Additionally, the court found that

while the third, signature page of the Directive was signed by the parties on May 15, 2010 and

appeared to be notarized on that date, the second page of the Directive purporting to contain

instructions if the parties separated or divorced was initialed by the parties on May 21, 2010.

       Perhaps most importantly, the trial court also found:

       [McQueen] offered no credible explanation for why the Directive was signed and
       notarized on May 15, 201[0], but the critical information [on the second page of]
       the Directive – directing what is to happen to the frozen [pre-]embryos in the event
       of a divorce – was not completed and initialed until May 21, 2010.

       [I]n view of the different dates on the[se] two most critical pages of the Directive,
       [ ] the handwritten words on the right side of [the second page of the Directive
       directing what is to happen to the frozen pre-embryos in the event of a divorce] may
       have been filled in after [Gadberry] initialed [the page] on May 21, 2010.

       When [McQueen] handed the [pages of the Directive] to [Gadberry] for [him] to
       sign, she told him that the documents consisted of more transfer paperwork for the
       frozen [pre-]embryos.

       [Gadberry] and [McQueen] did not have a discussion at any time in May 2010 about
       what would happen to the frozen [pre-]embryos in the event of a divorce.

       [Gadberry] and [McQueen] had no discussions between the birth of [T.G.] and
       [B.G.] in 2007 and the time [McQueen] filed for divorce . . . about what should
       happen to the unused frozen [pre-]embryos in the event of a divorce.
                                             35
Finally, the trial court also made a finding indicating Gadberry did not sign the Directive with

the intent that McQueen be awarded the frozen pre-embryos in the event of a divorce.

               f.      Analysis

       The record reflects the trial court’s findings of fact regarding the Documents, the

Directive, and the parties’ discussions are supported by substantial evidence. Although there

was contested evidence regarding the circumstances surrounding the parties’ signing and

initialing of the Directive and whether the parties had any discussions concerning the disposition

of the frozen pre-embryos upon separation or divorce, we defer to the trial court’s credibility

determinations, assessment of the evidence, and findings of fact on these issues. See City of St.

Louis, 484 S.W.3d at 888; Kropf, 489 S.W.3d at 834; O’Gorman, 478 S.W.3d at 543. Viewing

the evidence and inferences therefrom in the light most favorable to the trial court’s judgment

and findings, see Kropf, 489 S.W.3d at 834, the trial court, (1) did not find credible McQueen’s

testimony that she handwrote the words providing the frozen pre-embryos “shall be . . . [u]sed by

Jalesia F. McQueen” in the event of separation or divorce in Gadberry’s presence and before he

initialed the page; (2) did not find credible McQueen’s testimony that she and Gadberry

discussed their options and both decided they wanted the frozen pre-embryos to be used by

McQueen if the parties were to separate or divorce; but instead (3) did find credible Gadberry’s

testimony that he and McQueen did not discuss what they wanted to happen with the frozen pre-

embryos if they were to separate or divorce. “Judging credibility and assigning weight to

evidence and testimony are matters for the trial court, which is free to believe none, part, or all of

the testimony of any witnesses.” Id. (quotations in original).

       Based on the trial court’s findings of fact and credibility determinations, the evidence

does not clearly and unequivocally show that the Directive was an agreement where both

McQueen and Gadberry intended the frozen pre-embryos to be excluded from their marital

                                                 36
property. See Degerinis, 724 S.W.2d at 720. Equally importantly, the trial court’s findings of

fact and credibility determinations regarding the circumstances surrounding the signing and

initialing of the Directive indicate it was not entered into freely, fairly, knowingly,

understandingly, and in good faith with full disclosure. See Rivers, 21 S.W.3d at 122.

Significantly, the trial court found McQueen’s handwritten words purporting to direct what is to

happen to the frozen pre-embryos in the event of a divorce may have been filled in after

Gadberry initialed the page and that the parties did not have any discussions regarding that issue

in May 2010 or any other time before McQueen filed for divorce. The trial court also made a

finding indicating Gadberry did not sign the Directive with the intent that McQueen be awarded

the frozen pre-embryos in the event of a divorce. Based on these findings, which are supported

by the evidence, there was not sufficient disclosure allowing Gadberry to make a meaningful

decision whether to waive any or all of his rights to the frozen pre-embryos. See McMullin, 926

S.W.2d at 111; Miles, 977 S.W.2d at 301; see also J.B., 783 A.2d at 719 (agreements between

gamete providers who are beginning the process of IVF “should not be signed . . . in a manner

suggesting that the parties have not given due consideration to the disposition question”); A.Z. v.

B.Z., 725 N.E.2d 1051, 1052, 1057 (Mass. 2000) (reviewing court could not conclude alleged

agreement represented the true intention of husband regarding disposition of frozen pre-embryos

under the circumstances of the case).

       Accordingly, McQueen has not proven by clear and convincing evidence that the

Directive is a valid and enforceable agreement under section 452.330.2(4) which renders the

frozen pre-embryos separate property to be awarded to McQueen under the circumstances of this

case. See Thorp, 390 S.W.3d at 876; King, 66 S.W.3d at 35; Rivers, 21 S.W.3d at 122;

Degerinis, 724 S.W.2d at 720. Therefore, McQueen has not overcome the presumption that the



                                                  37
frozen pre-embryos are marital property, and the trial court did not err in classifying the frozen

pre-embryos as marital property. 32 See Thorp, 390 S.W.3d at 876; sections 452.330.2 and .3.

         2.       Whether the Trial Court was Required to “Divide” the Frozen Pre-Embryos
                  and Award Them to Either McQueen or Gadberry

         We now turn to McQueen’s alternative argument that the trial court erred in awarding the

frozen pre-embryos to the parties jointly because the trial court was required to “divide” them

and award them to either McQueen or Gadberry. Importantly, the trial court did not merely

award the frozen pre-embryos to the parties jointly but also found the frozen pre-embryos were

marital property of a special character and ordered that “no transfer, release, or use of the frozen

[pre-]embryos shall occur without the signed authorization of both [Gadberry] and [McQueen].”

         A trial court is vested with considerable discretion and “has great flexibility and far-

reaching power” in awarding marital property. See Workman v. Workman, 293 S.W.3d 89, 95,

96 (Mo. App. E.D. 2009). Moreover, we presume that a trial court’s award of marital property is


32
  Our determination that McQueen has not proven by clear and convincing evidence that the Directive is a valid and
enforceable agreement under the circumstances of this case is dispositive of McQueen’s first argument in her third
point on appeal. This Court takes no position on whether gamete providers may enter into a valid and enforceable
agreement regarding the disposition of frozen pre-embryos upon divorce, an issue which involves personal and
sensitive issues and may implicate a party’s right to procreate and/or a party’s right to avoid procreation. We note
some courts in other states have given effect to valid and enforceable agreements between two gamete providers
regarding the disposition of frozen pre-embryos upon divorce when the agreements evinced an intent other than
implantation of the pre-embryos. See In re Marriage of Dahl and Angle, 194 P.3d at 835-42 (affirming trial court’s
determination giving effect to the gamete providers’ valid agreement with the IVF facility at the time they began the
IVF process which essentially evinced the parties’ intent that frozen pre-embryos should be destroyed upon
divorce); Vitakis v. Valchine, 987 So.2d 171, 171-72 (Fla. Dist. Ct. App. 2008) (affirming trial court’s determination
giving effect to gamete providers’ mediated marital settlement agreement in divorce proceedings requiring the wife
to provide frozen pre-embryos to the husband so he could dispose of them); Roman v. Roman, 193 S.W.3d 40, 41-55
(Tex. App. 2006) (reversing and remanding case to the trial court with instructions to enter an order consistent with
gamete providers’ agreement with the IVF facility shortly before they began the IVF process providing frozen pre-
embryos were to be discarded in the event of the divorce); Kass, 696 N.E.2d at 175-82 (affirming appellate
division’s determination giving effect to gamete providers’ agreement with IVF facility during beginning stages of
IVF which evinced the parties’ intent that frozen pre-embryos should be donated to the IVF program for approved
research purposes in the event of the divorce where parties entered into subsequent “uncontested divorce” agreement
affirming the disposition); c.f. A.Z., 725 N.E.2d at 1057-58 (“[e]ven had the husband and the wife entered into an
unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not
enforce an agreement that would compel one donor to become a parent against his or her will” because “[a]s a
matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement”); but
see Witten, 672 N.W.2d at 771, 782 and J.B., 783 A.2d at 710, 719 (adopting a rule to enforce agreements entered
into by gamete providers at the time IVF has begun “subject to the right of either party to change his or her mind
about disposition up to the point of use or destruction of any stored [frozen pre-embryos]”).
                                                         38
correct, and the party challenging the award has the burden of overcoming that presumption. See

Sullivan v. Sullivan, 159 S.W.3d 529, 534 (Mo. App. W.D. 2005).

       Section 452.330.1 provides in relevant part that:

       In a proceeding for dissolution of the marriage . . . the court . . . shall divide the
       marital property and marital debts in such proportions as the court deems just after
       considering all relevant factors including [those set out in this statute].

       Multiple decisions from our Court indicate that section 452.330.1 does not prohibit courts

from awarding property to parties jointly in unusual circumstances where the property cannot be

justly divided. In Murray v. Murray, this Court explicitly held that the statutory language set out

above which provides “[t]he court . . . shall divide the marital property in such proportions as the

court deems just after considering all relevant factors” did not prohibit an allocation that leaves

the parties as tenants in common in unusual circumstances where the property was not

susceptible to a division in kind. 614 S.W.2d 554, 555-56 (Mo. App. E.D. 1981) (discussing

section 452.330 RSMo 1978). In addition, in W.E.F. v. C.J.F., we found the trial court did not

err in awarding a complex financing instrument to the parties jointly and putting restrictions on

the parties’ use on the property under unusual circumstances where the property was not

susceptible to a division in kind. 793 S.W.2d 446, 451, 457-59 (Mo. App. E.D. 1990). Finally,

in Glosier v. Glosier, this Court found the trial court did not err in entering an order providing for

a buy-out procedure for farm property that could result in leaving the parties each having a one-

half interest in the property as tenants in common under unusual circumstances where the

property was the “most substantial marital asset” and division of it would be “grossly

disproportionate.” 817 S.W.2d 580, 581-84 (Mo. App. E.D. 1991).

       Like the circumstances and property in Murray, W.E.F., and Glosier, the circumstances

of this case are unusual, and the frozen pre-embryos are not easily susceptible to a just division.

As previously stated, frozen pre-embryos are unlike traditional forms of property because they

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are comprised of a woman and man’s genetic material, are human tissue, and have the potential

to become born children. Davis, 842 S.W.2d at 596-97. Moreover, the frozen pre-embryos in

this case are not easily susceptible to a just division because conflicting constitutional rights are

at issue (McQueen’s right to procreate and Gadberry’s right not to procreate), and because there

is no valid and enforceable agreement between the parties regarding the disposition of the frozen

pre-embryos.

       The trial court’s judgment – awarding the frozen pre-embryos to Gadberry and McQueen

jointly, and ordering that “no transfer, release, or use of the frozen [pre-]embryos shall occur

without the signed authorization of both [Gadberry] and [McQueen]” – subjects neither party to

any unwarranted governmental intrusion but rather leaves the intimate decision of whether to

potentially have more children to the parties alone. We cannot find this ruling was erroneous

under the circumstances of this case. See W.E.F., 793 S.W.2d at 457-59 (finding it was not

erroneous for the trial court to award a complex financial instrument to the parties jointly and

order that “[n]either party shall have the right to alter, amend, modify or change the terms and

conditions of [the instrument] . . . without the written consent of the other party” under unusual

circumstances where the property was not susceptible to a division in kind) (emphasis omitted);

J.B., 783 A.2d at 715 (where a husband and wife are both gamete providers, the decision

concerning the disposition of frozen pre-embryos “should be theirs to make”); Davis, 842

S.W.2d at 596, 597 (“decision-making authority regarding [frozen pre-embryos] should reside

with the persons who have provided the gametes”) (quotations in original).

       3.      Conclusion as to Point Three

       Based on the foregoing, the trial court did not err in awarding the frozen pre-embryos to

the parties jointly. Point three is denied.



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                                     III.    CONCLUSION

       The trial court’s judgment finding the frozen pre-embryos are marital property of a

special character, awarding the frozen pre-embryos to Gadberry and McQueen jointly, and

ordering that “no transfer, release, or use of the frozen [pre-]embryos shall occur without the

signed authorization of both [Gadberry] and [McQueen]” is affirmed.




                                               ROBERT M. CLAYTON III, Judge

Lisa S. Van Amburg, P.J., concurs.
James M. Dowd, J., dissents in a separate opinion.




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