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Are Red States Going to Be Blue Over IVF Cases: A discussion of the state of IVF custody cases pre and post Roe v. Wade 


  Bioethics in Law & Culture                                                                                                                                  Fall  2022       vol. 5  issue  4

Jalesia F. McQueen Kuenzel, J.D.

Co-Founder & Director

Embryo Defense 

There is no question Roe v. Wade dealt very distinctly with the issue of abortion in this country and even had an impact worldwide.  However, there is an industry that is much less discussed and until recently almost completely overlooked or avoided – In Vitro Fertilization (IVF).  Unlike abortion, IVF has traveled under the radar.  However, like abortion, IVF, globally, has boomed into a multi-million dollar per year industry ($628 million in 2021) and is likely to grow at a rate of 8.7% in the coming years.[1]  In the United States, its growth rate is likely to be 6.8% from now through 2027 and in 2020 the industry was valued at $4,905.46 million, well ahead of the global value.[2]  There is no question this is a dominant industry – one that has been allowed to grow without ethical, moral, or legal oversight.  Assisting infertile couples to conceive seems like a pro-life venture and in many ways it is. The doctors, nursing, and staff who work at these reproductive clinics do provide a wonderful service to those who cannot have children without some medical assistance; however, there is a much darker side to IVF, one which allows certain embryos to live and others to die or be killed.  The embryologists and doctors that work at these clinics certainly know that science dictates these are living human beings.


On June 24, 2022, the United States Supreme Court shocked the world by overturning the long-standing legal precedent set by Roe v. Wade.  Conservative (red) versus liberal (blue) states began drawing lines in the sand as to how they would function under a post-Roe legal landscape.  But abortion is not the only procedure at risk.  The IVF industry also has begun to run scared, with many reproductive clinics across the country voicing their fear and disappointment in the overturning of Roe publicly and to their patients.[3]  IVF has been lumped in with the concept of freedom to choose your reproductive health and although this is a noble concept (to conceive children for the infertile), it runs into the same problem abortion does – where do the rights of the mother end and the rights of the embryonic child begin.  I want to be clear: most of the people that work in the IVF industry are customer focused, kind, and truly believe in what they are doing.  I have utilized IVF on a couple of occasions and have always been treated with the utmost respect and it is obvious that the doctors love to assist in the conceptions.  There is an electricity and excitement in what they do.  But again, it’s the lack of oversight that has caused this otherwise noble cause to run awry of basic human rights and pro-life values.  


In order to understand the issues of IVF, we need to know a little about what IVF is, and why IVF’s practices and procedures make them so fearful in this post-Roe era and controversial among pro-life advocates.  In vitro fertilization is defined as, “a specialized technique by which an ovum, especially a human one, is fertilized by sperm outside the body, with the resulting embryo later implanted in the uterus for gestation.”[4]  It is indeed specialized and the procedure involves, “ovarian stimulation, egg retrieval, sperm retrieval, fertilization, and embryo transfer.”[5] The process is complex and expensive costing anywhere from $12,000 to $14,000 per cycle.[6] And couples normally go through more than one cycle to achieve pregnancy.[7]  The medical portion of IVF involves early and multiple maturation of a woman’s eggs, masturbation, and selective reduction (the abortion of one of the children in utero), which is against the Catholic Church teachings, not to mention most pro-life advocates, and has caused a condemnation of the practice.  In fact, the United States Conference of Catholic Bishops put out an article in 1998 addressing IVF.[8]  In the article, Dr. Haas makes some salient points about IVF and how it dehumanizes the unborn, encourages the indiscriminate killing of embryonic children, and violates the marital act because it is done outside of the marriage and not during the act of lovemaking.[9]  Although all of these points are indeed legitimate, there is still no guidance as to what to do with all the human embryos suspended in cryopreservation.


In addition to the practices and procedures, which may include immoral acts, there is the question of what to do with the frozen unborn humans in the U.S. today.  Because IVF is a prohibited practice by some segments of the pro-life community, there is much confusion, which leads to judgment, as to individuals that use IVF to conceive children.  In many ways, there is a divide, which means that the IVF industry does not have the same opposition to it as the abortion industry does.  In fact, even the number of frozen embryos is up for debate since IVF clinics are not required to report any statistics, except for those they deem legitimate to serve their interests.  For example, there is no specific data on how many frozen embryonic children exist nor how many are killed in the process of IVF.  In 2018, it was estimated that there were 1.4 million frozen embryos in the United States.[10] It is estimated that out of those embryos, between 5-7% are abandoned, but some clinics report as high as 18%, which puts the number of human lives in limbo between 7,000 and 252,000.[11]  The organization I co-founded with Rebecca Kiessling, Embryo Defense (501c3 organization) used data from the Center for Disease Control and some reproductive clinics (number of cycles and number of births) to arrive at an estimated 2.1 million frozen embryos in the United States as of 2021.[12]  This number is staggering.  The number of embryonic children killed in the process must reach into the millions. 


The pro-life community is divided and, unlike abortion, the facade of creating families and conceiving children for those who are infertile seems like a far cry from a pro-death message.  In addition, the IVF industry deals with embryonic children on a microscopic basis.  If there is doubt in the minds of pro-abortion advocates that an unborn child in utero is, in fact, a child, then the argument for a blastocyst being an embryonic child would certainly be far-fetched.  Indeed when I saw my embryos for the first time during an IVF procedure prior to implantation through a photo taken by a microscope – the first baby photo of my child, the degree of admission by the embryologists and doctors of the embryo being a baby was undeniable.  I would hear comments like, “oh how cute”, “so precious”.  This is not a clump of cells, even for those involved.  And how can it possibly be?  I was shown my little one on a screen already budding extra cells to attach to my uterus.  In an article written in 2009 included in the National Library of Medicine, the authors state, “ [i]t is important to note that embryological evidence shows that the human embryo is a whole, although obviously immature, human being; it is not a mere part. This is a crucial point: human tissues or human cells, whether body cells or gametes, are indeed human—that is, genetically human—but are not whole human organisms. Neither of these has the active disposition to develop itself to the mature stage of a human being. By contrast, the human embryo, from fertilization onward, is fully programmed to actively develop himself or herself to the next mature stage along the path of human development.”[13]  The human embryo, upon fertilization and going forward, is just an immature human being.  The only difference between an embryo, a fetus, a toddler, and an adult is time.  Science is on the side of the embryo.  Science is also against abortion, but we all recognize the difficulties in convincing society of the brutality of abortion, even when babies with arms and legs are dismembered.


Another major difference between abortion and IVF is the regulatory scheme.  While abortion has so many laws and regulations limiting its use, IVF can be called the “Wild West” of the medical industry because it enjoys little to no laws or regulations addressing its use.  Perhaps part of this can be attributed to IVF helping infertile couples conceive and its perception is one of life, while abortion is one of death.  Interestingly, it’s actually in Europe where most of the restrictions and regulations appear.  Some European countries restrict the use of IVF based on the circumstance of the individual, for example lesbians and single women are the most hard hit.[14]  France and Italy do not allow lesbians or single women to use IVF or any related assisted reproductive techniques and some countries like Austria and Italy ban the use of egg and sperm donations.[15]  Some countries ban donating eggs or sperm and some require you be either married or in a “stable relationship for at least a year”.[16]  Italy’s stance on IVF is the most interesting because they passed a law (effective March 10, 2004) that placed many limitations on the procedure.[17] “Specifically, no more than three oocytes can be fertilized at one time during an IVF treatment, and subsequently all embryos obtained must be transferred to the woman's uterus simultaneously. The freezing of spare embryos and screening of embryos for genetic and/or chromosomal defects are forbidden. Moreover, the law prohibits oocyte or sperm donation, the use of surrogate mothers, and rules out treatments for gay couples and single people.”[18]  Although this may horrify some who believe in unbridled medical practices, it is soothing to those who value human embryos.  After all, most states in the United States considers the human embryo nothing more than a commodity or property because it’s been left up to the courts.


This goes for those states dubbed “red” and “blue”.  Red states are supposedly those that are rooted in more conservative, Christian values.  Blue states are those that embrace a less stringent view of right and wrong and are more accepting of different relationships (such as homosexuals and single parent households).  Even with this distinction, red and blue states alike do not have much legislation, if any, on the topic of IVF.  And so, they find themselves in, basically, the same boat when it comes to interpreting and resolving issues that arise from IVF.  Judges find themselves, in these cases, either having to insert the reasoning of Roe v. Wade or attempting to create another framework in order to resolve the lack of legislation.[19]  In attempting to resolve these issues, the courts have invariably failed to take into account the human being involved, namely the human embryo.  The cases normally involve divorce or separation of a couple who conceived embryos during a relationship and are now at odds on what to do with the cryopreserved embryonic children.


States have resolved these cases by using either a contractual approach (looking at the contract that was signed between the parties and the reproductive clinic),[20] a balancing approach (weighing the rights of the partners involved)[21] or a contemporaneous approach (allowing the partners to make a decision after the divorce or separation).[22]  Most of these states can be categorized as blue states and some red states, but there is one that stands out – the Missouri case.  Missouri is most clearly a red state.  After the U.S. Supreme Court overturned Roe v. Wade under the Dobbs[23] decision, Missouri was the first state to be abortion-free.[24]  Over the years, Missouri has passed pro-life legislation in the form of stricter rules on abortion clinics and doctors and other measures, which has dwindled the number of abortion clinics in Missouri.  In fact in 2017, Missouri had two abortion clinics close down due to their law “mandating that physicians at medication-only abortion facilities have admitting privileges at a local hospital and a contract with an obstetrician-gynecologist.”[25]  Missouri was down to one abortion clinic in 2019.[26]  Between 2014-2017, Missouri only accounted for 0.5% of all abortions in the United States.[27]  Missouri also has a long standing statute (Mo. Rev. Stat 1.205) that protects the life of the unborn, although it had been weakened over the years.  Statute 1.205 states as follows (Italics for emphasis):


Life begins at conception — unborn child, defined — failure to provide prenatal care, no cause of action for. —
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.


The cross-references to the Missouri statute state as follows (Italics for emphasis):

(L. 1986 H.B. 1596)


Abortion regulations, Chap. 188
(1989)  Where the section by its terms does not regulate abortions or any other aspect of appellees' medical practice, it can be read simply to express a value judgment.  The extent to which the statute might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitely decide.  U. S. Supreme Court declined to rule on the constitutionality of the section unless the meaning of the section is applied to restrict the activities of a claimant in some concrete way.  Webster v. Reproductive Health Services, 109 S.Ct. 3040.
(1992) Definition of "person" in this section, which includes unborn children is applicable to other statutes and court concludes that it applies at least to the involuntary manslaughter statute, section 565.024, RSMo.  State v. Knapp, 843 S.W.2d 345 (Mo. en banc).
(1995) Statute sets out a canon of interpretation enacted by general assembly directing that time of conception and not viability is the determinative point at which legally protectable rights, privileges and immunities of an unborn child should be deemed to begin.  Statute further sets out the intention of the general assembly that courts should read all Missouri statutes in pari materia with this section. Connor v. Monkem Co., Inc., 898 S.W.2d 89 (Mo. en banc).


It seems very clear that outside the issue of abortion, Missouri’s pro-life statute should be used to interpret cases appropriately.  However, in spite of this, in 2016, Missouri’s Appellate Court still upheld a decision contrary to life in the IVF custody case of McQueen v. Gadberry.[30]  This was my own personal case.  I had begun with four (4) embryos, two of whom were implanted and are currently my 14-year-old twins.  The other two whom I have named Noah and Genesis are still in cryopreservation. My ex-husband and I had a written agreement that if we ever divorced, I would get the remaining two embryos.  But none of that mattered.  Instead of the court abiding by the statute in my case or going by the agreement, they chose to find every excuse not to give me my embryos.[31]  In fact, they used Roe v. Wade as one of the reasons that Mo. Rev. Stat. 1.205 could not be enforced.[32]  I have lived in anguish knowing that my little ones are beyond my grasp and are possibly dying with each day that goes by.  But, like any mother, I remain hopeful.


When June 24, 2022, came about, I celebrated with everyone else the end of a forty-nine-year slaughter of children.  It crossed my mind how this would affect me gaining my embryos after 14 years.  I remember receiving a call from my friend Nick Loeb urging me to look into this issue for my frozen babies.  During the time I lost my embryos in the court, I had represented him attempting to obtain his two embryonic daughters, Emma and Isabella, from his ex-fiance, Sofia Vergara. Both cases, in Louisiana (red state) and California (blue state) had not gone well for Nick, but he was still fighting and continues to do so.  It is difficult for people to understand what parents like Nick and I go through in the fight for our babies.  I searched up the Missouri Attorney General’s opinion on the topic and much to my surprise and elation, our Attorney General, Eric Schmitt, had written an incredibly strong opinion.  In relevant part, the opinion stated as follows:


This opinion immediately restores Missouri's deeply rooted history and proud tradition of respecting, protecting, and promoting the life of the unborn. Missouri has been a national leader in the pro-life movement, and this leadership is reflected in its laws. Missouri was among the first States to comprehensively prohibit abortion in 1825, and respect for the life of the unborn has been consistently reflected in its statutes for the past 200 years. Just a few months before Roe v. Wade was decided, the Supreme Court of Missouri upheld Missouri's statute prohibiting abortion, and it stated that "unborn children have all the qualities and attributes of adult human persons differing only in age or maturity. Medically, human life is a continuum from conception to death." Rodgers v. Danforth, 486 S.W.2d 258, 259 (Mo. bane 1972). This decision reaffirmed the Supreme Court of Missouri's previous decisions, which had. long recognized that "[b]iologically speaking, the life of a human being begins at the moment of conception in the mother's womb," and that "[f]rom the viewpoint of the civil law and the law of property," an unborn child "is not only regarded as human being, but as such from the moment of conception-which it is in fact." Steggall v. Morris, 258 S.W.2d 577, 579 (Mo. bane 1953).


Even after Roe was decided, Missouri's laws continued to provide the highest possible level of protection to the unborn. Among many other examples, Section 1.205, enacted in 1986, provides that: "(1) The life of each human being begins at conception; (2) Unborn children have protectable interests in life, health, and well­being; [and] (3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child." § 1.205.1, RSMo. It also provides that "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." § 1.205.2, RSMo.[33]


Is there hope for someone like me in a red state to retrieve my embryonic children?  My ability to appeal my case has come and gone, but the fact remains that my frozen children are human beings in every sense of the word and it seems counterintuitive to allow them to sit in their prison of ice and die because of a legal hurdle.  It is surreal to consider that prior to June 24, 2022, Noah and Genesis were considered “property with special character”[34], and now, in Missouri, they are considered human beings.  What mechanism is available for me to move forward and save my children Noah and Genesis from almost certain death?  Even in a red state?  Or will there be no path to retrieve them, since IVF has been treated differently even in red states?  Parents like me will continue to try to reach our children because that is what parents do.  But there is a divide and a lack of support in this pro-life area that needs to be awakened.  Noah and Genesis are as real to me as all my children.  Although they may be microscopic and in a metal tank kept at below-freezing temperatures, they are still my babies.  And I should not be kept from them simply because it was bad timing.  My case is still the law in Missouri.  Roe v. Wade has been overturned and we have every reason to celebrate and thank Almighty God for this blessing.  However, please let us not forget that the IVF industry is continuing onward, although with good intentions, also with little or no oversight.  And there are parents like me who are caught in a battle with seemingly no end and where time is of the essence.  Noah and Genesis belong in my womb, but time goes by and no one stays young forever.  I will continue to pray, to inform, to speak, and to hope that these embryonic children are given the respect they deserve.  After all, we all started as embryos.


Red states need to focus on legislation for this rapidly growing area; otherwise, the court precedent is developing into a sea of blue where embryos have no rights and are indiscriminately destroyed at will.  The impact of this will resonate for generations to come, as human embryos are being conceived and frozen at a phenomenal rate.  The lives of these tiniest of humans deserve respect and the more we know about the IVF industry, the more we can stop this second wave of death in a post-Roe era.



[1] Facts & Factors, “In Vitro Fertilization (IVF) Market Size to Hit $1036.7 Million by 2028 | Global IVF Industry Trends, Share, Competitive Analysis & Forecast Report”, Globe NewsWire, September 17, 2022,,US%24%201%2C036.7%20Million%20by%202028.

[2] Ravi T, Smita M, and Onkar S, “IVF Market in US by Cycle Type (Fresh IVF Cycle, Thawed IVF Cycle and Donor egg IVF Cycle) and End User (Fertility Clinics, Hospitals, Surgical Centers, and Clinical Research Institutes: Analysis and Industry Forecast, 2019-2027”, Allied Market Research, June 2020,

[3] Boston IVF, “Roe v. Wade & Embryo Protection at Boston IVF: Reproductive Freedom for All”, July 11, 2022,; Beltsos, Dr. Angie, “A Message on the Roe v. Wade Decision”, Kindbody blog, June 24, 2022,; Reproductive Partners, Medical Group, Inc., “What You Should Know About Recent Changes To Roe v. Wade”, Reproductive Partners website,

[4] unabridged based on the Random House Unabridged Dictionary, Random House, Inc., 2022,

[5] Mayo Clinic, “In vitro Fertilization”, Mayo Foundation for Medical Education and Research (MFMER) 1998-2022,,the%20process%20can%20take%20longer.

[6] Conrad, Marissa and Grifo, James, MD, PhD, “How Much Does IVF Cost”, Forbes Health – Forbes Media LLC, June 27, 2022

[7] Conrad, “How Much Does IVF Cost”

[8] Haas, John M., Ph.D., S.T.L., “Begotten Not Made: A Catholic View of Reproductive Technology”, United States Catholic Conference, Inc., Washington, D.C., 1998,

[9] Haas, “Begotten Not Made: A Catholic View of Reproductive Technology”

[10] Marchione, Marilynn, “In limbo: Embryos left after IVF challenge clinics, couples”, TribLiv, January 22, 2019,

[11] Marchione, “In limbo: Embryos left after IVF challenge clinics, couples”

[12] Marchione, “In limbo: Embryos left after IVF challenge clinics, couples”; Erika, Reproductive Resource Center, “What Happens to Stored Embryos If I Decide Not To Use Them?” January 13, 2022,, (Average frozen embryos per couple: 3-5); Center for Disease Control and Prevention, “ART Success Rates”, 2019,, (330,773 cycles and 83,946 births in 2019)

[13] George, Robert P. and Patrick Lee, “Embryonic human persons. Talking Point on morality and human embryo research”, National Library of Medicine, National Center for Biotechnology Information, European Molecular Biology Organization, April 2009,

[14] CBS News, “Fertility treatment bans in Europe raise controversy, questions”, CBS Interactive Inc., April 13, 2012,

[15] CBS News, “Fertility treatment bans in Europe raise controversy, questions”

[16] CBS News, “Fertility treatment bans in Europe raise controversy, questions”

[17] Ragni, G., A. Allegra, P. Anserini, F. Causio, A.P. Ferraretti, E. Greco, R. Palermo, E. Somigliana, “The 2004 Italian legislation regulating assisted reproduction technology: a multicentre survey on the results of IVF cycles”, European Society of Human Reproduction and Embryology, Oxford University Press, Human Reproduction, Volume 20, Issue 8, August 2005,

[18] Ragni, G. “The 2004 Italian legislation regulating assisted reproduction technology”

[19] Litowitz v. Litowitz, 48 P.3d 261 (Wash. En banc, 2002); Terrell v. Torres, 456 P.3d 13 (Ariz. 2020); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); J.B. v. M.B. and C.C., 783 A.2d 707 (N.J. 2001); Reber v. Reiss, 432 A.2d 1131 (Pa. Super. 2012); Szafranski v. Dunston; 34 N.E.2d 1132 (Ill. App. 2015); Rooks v. Rooks, 429 P.3d 579 (Colo. 2018); McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. E.D., 2016)

[20] Litowitz v. Litowitz, 48 P.3d 261 (Wash. En banc, 2002); Terrell v. Torres, 456 P.3d 13 (Ariz. 2020)

[21] Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); J.B. v. M.B. and C.C., 783 A.2d 707 (N.J. 2001); Reber v. Reiss, 432 A.2d 1131 (Pa. Super. 2012); Szafranski v. Dunston; 34 N.E.2d 1132 (Ill. App. 2015); Rooks v. Rooks, 429 P.3d 579 (Colo. 2018)

[22] McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. E.D., 2016)

[23] Dobbs v. Jackson Women’s Health Organization, 945 F. 3d 265 (2022)

[24] Weinberg, Tessa, “Abortion is now illegal in Missouri in wake of U.S. Supreme Court ruling”, Missouri Independent, June 24, 2022,

[25] Jones, Rachel K., Elizabeth Witwer and Jenna Jerman, “Abortion Incidence and Service Availability in the United States, 2017”, Guttmacher Institute, September 2019 Report,

[26] Tavernise, Sabrina and Lynsea Garrison, “The abortion wars, part 1: the last clinic in Missouri, 2019 (Podcast)”, New York Times, April 17, 2019,

[27] Guttmacher Institute, “State Facts About Abortion: Missouri”, June 2022,,patient's%20health%20is%20severely%20compromised.

[28] Missouri Revised Statutes 1.205, Revisor of Missouri, August 28, 1986,,being%20of%20their%20unborn%20child.

[29] Missouri Revised Statutes 1.205

[30] McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. E.D., 2016)

[31] McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. E.D., 2016)

[32] McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. E.D., 2016)

[33] Attorney General of Missouri, Eric Schmitt, Immediate Efficacy of Section 188.017, RSMo, OPINION LETTER NO. 22-2022

[34] McQueen v. Gadberry, 507 S.W.3d 127 (Mo. App. E.D., 2016)

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