The Embryo Crusader

Jasha McQueen is battling her ex-husband for the embryos they froze nine years ago. Will her fight — which has now reached the Missouri State Capitol — threaten reproductive rights across the country?

Jasha McQueen Is The Embryo Crusader

Jasha McQueen is battling her ex-husband for the embryos they froze nine years ago. Will her fight — which has now reached the Missouri State Capitol — threaten reproductive rights across the country?

It's a bright morning in March, and Jalesia McQueen is driving her white SUV, piled with lawn signs from her most recent failed political campaign, to the Missouri State Capitol. She’s going to testify in favor of a bill she helped write that’s making women across the country furious.

She juts her face toward me and blinks exaggeratedly. “Like my fake eyelashes?” she asks. “It’s all glue!”

I point out that we’re running a little late. “Oh, I’ll get us there on time,” she laughs, noting that she’s done the drive enough times in the last few months to go with her eyes closed. She’s convincing. She slams a little harder on the gas, making the white rosary beads under the rearview mirror swing.

McQueen (who goes by her childhood nickname, Jasha — or “hah-shuh”) is a 44-year-old immigration lawyer who runs a practice out of her home in the quiet outskirts of St. Louis. But she has little time to take clients these days. For the past six years, she’s been immersed in an increasingly public legal fight over frozen embryos.

From 2010 to 2015, McQueen was caught in a nasty divorce with her then-husband, an Army reservist named Justin Gadberry. At the heart of their battle were two embryos frozen at five days old, leftover from the couple’s 2007 in vitro fertilization that also produced a pair of twin boys. At the time, McQueen and Gadberry had signed forms from the fertility clinic agreeing that, in the event of a divorce, McQueen would get the embryos. But when that day came, Gadberry fought to keep them from her — and won.

Now, McQueen is appealing that court’s decision, and in the meantime, pushing for something far bigger: a Missouri law that would require judges to “act in the best interests of the in vitro human embryo” — that is, in favor of the genetic parent who wants to turn the embryo into a baby. The bill also says that judges can’t rule to destroy embryos, or to leave them frozen indefinitely.

Unlike the dozen or so previous legal fights over frozen embryos in the U.S. (including, most famously, actress Sofia Vergara’s ongoing dispute with her ex-fiancé), McQueen has enlisted anti-abortion groups to make her case not just a personal battle over property rights and contracts, but a public fight over how we define personhood.

Missouri Right to Life is supporting her bill and helping her appeal her embryo case. She’s also started a nonprofit, called Embryo Defense, which brings together people in situations like hers while trumpeting “the importance of saving human embryos.” (Its insignia is a gray shield showing a glowing silhouette of a baby overlaid on an embryo.)

Well over 1 million embryos are frozen in tanks across the country.

Well over 1 million embryos are frozen in tanks across the country — to be used by their genetic parents, donated to science, given to couples who can’t conceive on their own, or thrown away. McQueen’s bill could have huge implications for the national debate over personhood — a movement asserting that human life begins at conception — that has so far mostly left IVF unscathed.

“This bill goes so far as to say this fertilized egg — regardless of whether it is now implanted — should be considered a child in the state of Missouri,” Sara Rossi, director of policy and advocacy at the American Civil Liberties Union in Missouri, told BuzzFeed News. “That is a 100% recognition of personhood.”

If it passes, Rossi added, it would essentially force one genetic parent to have children they don’t want — a legal precedent that threatens abortion rights. “It is a fundamental liberty issue whether or not you want to have children. That is where abortion law has rested, and where this embryonic law should rest.”

But to McQueen, embryos are life. “If my embryos were on Mars, and they found my embryos, what would we all be saying? ‘We found life on Mars!’” she laughs.

Her levity downplays a bullish sense of righteousness. McQueen was in the Army for five years and proudly identifies as a conservative. A big fan of Donald Trump and Sarah Palin — and every bit as charming as the latter — she’s the type of person who refers to what “the feminists say” with gleeful chiding.

Still, McQueen isn’t exactly the poster child for “family values.” She jokes about how she’s “looking for ex-husband number three,” and has advocated for women to devote themselves to their careers even after having kids. During her five-year divorce proceedings, she had a child with a man she was briefly dating but who left her shortly after she got pregnant. “Sometimes when I’m in conservative circles they’re like, 'Sorry — what?'”

She seems to know the impact her bill could have on reproductive rights, and yet denies that she’s intentionally using one of the country’s most divisive political movements for anything other than getting what’s rightfully hers.

“This isn’t a pro-life issue, this isn’t a pro-choice issue — it’s a pro-parent issue,” she says, in one of many signature phrases she’s coined about a topic that’s hard to find words to talk about.

“I’m not trying to upturn the apple cart. I’m not trying to change the world! No, I’ve got my own humble opinion, I’ve got what’s going on with my case, and I want to save my freakin’ babies.”

McQueen’s Peruvian great-grandfather used to say, “Everybody has a superpower — survival.” It’s the mantra McQueen's immigrant mother raised her by, growing up in a trailer in rural Florida. In school, she was often bullied for looking different, but brushes it off. “You’ve got to learn to defend yourself and not just let that roll onto you, not shuck that duty over to the school or whatever! That needs to be more of the message these days.”

When she was 19, in her second year of college, McQueen had an abortion. If she had had the baby, she says, she would have lost her ROTC scholarship, what she calls her proudest life achievement. So she didn’t think twice about it.

But now she says not having the baby is the biggest regret of her life. “I believe I would have achieved just as many things as I’ve achieved now had I gone that route.”

Her shift against abortion came nearly 15 years later. After she had her twins, she says, she no longer saw embryos as a bunch of tissue, but as people.

The guilt she feels over the abortion is part of why she’s fighting so hard to get her frozen embryos back, she says. “I can’t just let them go. I can’t do it this time. I have to fight, with everything I can, to give them that chance. Because I made a bad choice.”

Two years after graduating, while they were both in the Army, McQueen married her college boyfriend. But she was quickly bored by the routine of military life. She found some release in writing op-eds for The Army Times, but got in hot water after arguing that women weren’t ready for the military. So she moved to Illinois for law school, and her husband divorced her soon after.

She met Gadberry in April of 2004, when they were on the same team for an 80-mile relay race across Illinois. McQueen was 32 and a lawyer at a big firm in St. Louis; Gadberry was 21 and a senior in college.

Despite the age difference, they hit it off right away. “He was charming and funny — an all-American-looking boy,” McQueen says. “People at my office were bugging me, calling him a boy toy and stuff, but I was just laughing.”

Dating long-distance was difficult, but their relationship moved quickly. Within a year or so, she told him she wanted to have children someday, and asked whether he might be willing to be a sperm donor. According to McQueen, he agreed.

Six months later, after Gadberry joined the Army, they were married. Because Gadberry expected to be shipped off to Iraq, they decided to freeze his sperm so she could have a baby while he was gone. “I was in my mid-thirties; my clock was ticking,” McQueen says.

Gadberry provided a sperm sample and flew to Iraq a few weeks later. But the sperm didn’t freeze well, so McQueen’s doctor suggested IVF. The next time Gadberry was back from Iraq, he signed the consent forms. Then he left for a reserve stint, this time in North Carolina, for the better part of a year.

The idea of making embryos outside of a woman’s body, or in vitro, had only become a reality 30 years before, when the world’s first “test tube baby,” named Louise Brown, was born in England.

Back then, very few embryos successfully implanted in the woman’s uterus. “Louise Brown was about the 100th try,” says Nicole Noyes, director of fertility preservation at New York University’s Langone Fertility Center. “People were really excited that we could now create life outside the body, but it was also really inefficient.”

By the time McQueen went through IVF, fertility experts had figured out one way to make the process more efficient: by injecting women with hormones that would stimulate the ovaries to release multiple eggs, instead of the usual one per menstrual cycle. That way, several eggs could be fertilized in the lab at once. Then, over the course of three to five days, the embryos divide from one cell into about 100.

That technological advance also meant that fertility clinics were left with lots of extra embryos — which, if frozen, could be used months or even years later if a couple wanted to have more kids. In 1984, the first baby to start as a frozen embryo, named Zoe Leyland, was born in Melbourne.

“Another perk, another gift,” Noyes says. “But in the background of the gift is hundreds of thousands of frozen embryos that will never be used. Which quite frankly, I feel like the field has turned a blind eye to, because there was no easy way around it."

The two embryos were carefully infused with a tiny dose of antifreeze, pipetted from their petri dishes into plastic vials, and plunged into liquid nitrogen.

Other countries have tried to avoid this situation. German law states that no more than three embryos can be created in each round of IVF, and all have to be implanted at once. Italy previously had a similar rule that was later found to be unconstitutional, but still bans destroying the embryos or using them for scientific research. In France embryos can be frozen, but only up to five years. The U.S. has no such restrictions.

In March 2007, with her husband still stationed in North Carolina, McQueen began the painful series of hormone shots, which she injected herself every night for about 10 days. The final injection, which causes the eggs to mature, is timed precisely 35 hours before egg retrieval. When that hour came, McQueen recalls, she was at practice for her classic rock cover band. “I was in front of the house, it was dark out, and here I am in my car, pulling out this giant shot and poking myself in the belly!”

Her ovaries produced 10 eggs, four of which became viable embryos after being fertilized in the lab with Gadberry’s sperm. In March, doctors implanted two of the embryos into her uterus, and eight months later, with Gadberry finally living with her in St. Louis, she gave birth to two healthy twin boys, Tristan and Brevin.

The other two embryos, meanwhile, were carefully infused with a tiny dose of antifreeze, pipetted from their petri dishes into plastic vials, plunged into liquid nitrogen at -196 degrees Celsius, and finally stored in tanks.

Eight years later, shortly after she lost her case, McQueen named them Noah and Genesis.

Gadberry and McQueen’s marriage was rocky from the start. For about a year, she says, he didn’t have a job, and she worried about his drinking. By 2010, McQueen had started her own law firm, finances were tight, and tensions ran high.

It all came to a head on the night of September 23, 2010. After an evening when Gadberry was out late drinking, McQueen decided to take the kids to her parents’ house. He arrived home just as she was about to leave, and began yelling at her in the garage.

According to the police report from that night, Gadberry grabbed her phone and tried to open the car door where the kids were sitting, but McQueen locked him out. At this point, he lost it. He started shoving her into the house, where he began to pull her hair and hit her face. “She stated the only reason he stopped hitting her was because he saw her blood and hair on the floor,” the police report reads.

McQueen ran across the street and banged on the door of her neighbor’s house, screaming for the police. “She was afraid of what Justin was going to do,” recalls Mary, the neighbor, who asked that her last name be withheld to protect her privacy. She remembers giving McQueen a rag to clean her bloody hands and face.

McQueen knew her marriage was over that night. Yet she desperately wants to bear his children. “It’s not about him — that’s the part that people don’t get,” she says. “I mean, I have two kids from him, does that mean I want to slit their throats? I’d do it all over again just to have them.”

Gadberry declined to comment for this story. His lawyer, Tim Schlesinger, says that his client “disputes her allegations of what she claims he did to her,” but would not elaborate. (Schlesinger has not seen the police report, he says.)

In any case, Schlesinger says, the incident “has absolutely no relevance to the issue of the frozen embryos.”

Most of their divorce proceedings were straightforward. Gadberry took the Ford 500; she got the Dodge Caravan. They had joint custody of the kids, and he would pay her $700 in monthly child support.

But they couldn’t agree on the embryos. She wanted to implant them and have more kids. He would have agreed to any other alternative, including donating them to an infertile couple or biomedical researchers, destroying them, or freezing them forever — anything except allowing his ex-wife to bear more of their children. So the divorce dragged on.

About a dozen such frozen embryo disputes have appeared in U.S. courts since 1989, as once-happy couples who had embraced IVF started going through divorces. Early on, fertility clinics didn’t issue consent forms, notes Gary Marchant, a law professor at Arizona State University who focuses on bioethics. “These were people starting a family — they didn’t anticipate divorce or anything.” So it was up to the whims of the judge.

About a dozen such frozen embryo disputes have appeared in U.S. courts since 1989.

In the first case, for example, a Tennessee circuit court judge ruled in favor of a woman who wanted to implant the leftover embryos. He reasoned that they were “human beings existing as embryos,” but also said it was the toughest decision he’d ever made in the courtroom. ''On a scale of 1 to 10, it was a 10. I have agonized over it,” he told the Associated Press. The state supreme court later overturned his decision, ruling in favor of the man who did not want more children.

By the late 1990s, after several more messy lawsuits over the elusive biological material, consent forms became a standard part of the IVF procedure for clinics, Marchant says. After that, most judges simply enforced the terms of the agreement, “but now there are starting to be some departures going both ways.”

In a 1999 case in Massachusetts, for example, a couple had signed consent forms to give the embryos to the woman in the event of a divorce. But the judge overruled the agreement, arguing that her ex-husband had a right not to procreate. In contrast, a 2015 case in Illinois overruled an agreement in favor of a woman who wanted to use the frozen embryos, on the grounds that she wouldn’t otherwise be able to have biological children because she had had cancer treatments. But in yet another case that year, Mimi Lee, a California woman who also lost her fertility because of cancer treatments, was denied the use of her frozen embryos.

“It is a disturbing consequence of modern biological technology,” the judge in Lee’s case wrote in her judgment, “that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.”

McQueen was confident in her case. The consent forms she and Gadberry had signed were crystal clear: If one person died, the embryos would go to the living parent; if both parents died, the embryos would be donated to another couple; and if they divorced, the embryos would go to her.

But when their case got to court, Gadberry testified that he did not read the paperwork before signing it. He also said that having more children with his ex-wife would be catastrophic.

“Jasha and I cannot co-parent, as it is, with the children we have,” he told Victoria McKee, the Missouri commissioner presiding over their case. Their twins, he said, were already struggling with the emotional and financial toll of a messy divorce.

“To bring more children into this situation, where we would not raise them together, is absolutely absurd. And, quite frankly, it's offensive to me, and it's offensive to my children,” he said. “I don't want to father more children with Jasha.”

At one point, Gadberry’s lawyer asked McQueen to address a question that looms over all frozen embryo cases: whether Gadberry would still be expected to pay the legally mandated child support for the children that, under the law, would still be his. “If I could say that I would not ask him for any financial obligation, I would do that in a heartbeat,” she said, “but I know that it's against public policy.”

During the five-year case, Gadberry did a military tour in Afghanistan, and McQueen ran on the Republican ticket for county assessor. She made signs, taped a radio ad, called houses, campaigned door-to-door, and even filmed a music video. “Everybody in the party was like, oh, you’re going to win,” she says. “But I lost, almost by a landslide!”

The case was also still ongoing when she gave birth to her third child, Ivan. When she got pregnant, McQueen was 41 and the father was a bit older. She had a blood test indicating that the fetus had a 99% chance of being born with Down syndrome, but she never considered an abortion. “We all had to make it out alive,” she says. Ivan was born with Down syndrome, and is now what McQueen proudly calls a “spitfire” of a toddler.

In April of last year, eight years after the embryos were frozen, commissioner McKee ruled against McQueen, saying that the consent form was not a binding contract. Although she described the embryos as “property,” she also said their characteristics were “unique.” If one parent decided to use them, she reasoned, then the other would “never [be] truly separated from the embryos,” which is unlike any other form of property.

McKee also noted that McQueen and Gadberry already had two kids together, and pointed out that McQueen had shown during the divorce proceedings that she was capable of having additional children on her own.

But the commissioner also decided that the embryos couldn’t be donated to another couple or given to biomedical research without McQueen’s consent. So they remain frozen in limbo.

“That a judge might be called upon to decide who should be born is truly breathtaking to contemplate.”

McQueen filed an appeal in June. Six months later, Missouri Right to Life, which McQueen had been consulting informally about her case for years, filed a brief to McQueen’s case along with the Thomas More Society, a Christian organization that is generally against IVF. (“The ethical problems there are unsolvable, basically,” Thomas Olp, their legal counsel, told me.)

The brief drew a provocative comparison between commissioner McKee’s decision and the infamous 1857 Dred Scott case, in which a Missouri court ruled that slaves should be considered property.

“Our sorry legacy of having enslaved human beings, and our scientific knowledge that human embryos are human beings, albeit powerless ones, should raise a red flag of caution against again treating these human beings as property,” the brief says.

A separate brief, filed in March of this year by the American Society for Reproductive Medicine in support of Gadberry, argued that treating frozen embryos as human life could have profoundly dangerous consequences.

“The notion that a judge might be called upon to decide who should be born,” they wrote, “is truly breathtaking to contemplate.”

After her loss in court, McQueen felt like she was alone in her fight. “You probably could throw a stone and hit somebody who’s had a divorce,” she told me. “But you can’t throw a stone and hit somebody who’s had this problem.”

She began to reach out to other people who had experienced similar situations. Her first call was to Nick Loeb, the ex-fiancé of actress Sofia Vergara who had written an op-ed for the New York Times saying that keeping their two embryos frozen forever, as Vergara intends, “is tantamount to killing them.”

Loeb suggested that McQueen email Rebecca Kiessling, a lawyer who had worked pro-bono on a frozen embryo case in Michigan, but who is better known for self-identifying as someone who was “conceived in rape.” About five years ago, Kiessling started an advocacy group called Save the 1, which aims to convince anti-abortion advocates to dismiss rape and incest exceptions in support of being “100% pro-life.”

Kiessling suggested they start a group similar to Save the 1, but focused instead on the heartrending tales of parents torn away from their frozen embryos. “I have 350 people conceived in rape in my group, and I thought we could do the same kind of thing for frozen embryos,” Kiessling told me. “The stories tear the heart in a way that [legal] cases cannot.”

That group became Embryo Defense. With the slogan “Persons not Property,” the group’s initial strategy was to focus as much as possible on the highest profile case they had, Loeb’s. Embryo Defense’s first Facebook post was a handsome picture of Loeb with the caption: “We are so thankful for the stand which Nick Loeb is taking to defend his daughters! #‎EmbryoDefense‬ #‎FrozenEmbryos‬ #‎PROLIFE‬.”

On June 25, Kiessling and McQueen assembled nearly 100 people at the premiere of Magic Mike XXL, which Vergara was attending, holding signs that said “Sofia: Unfreeze your daughters, Unfreeze your heart.”

Part of their strategy was also to testify before state lawmakers. So last fall, McQueen phoned her county’s representative in the House, a Democrat named Tracy McCreery. The women met with two Republican representatives, Paul Curtman and John McCaherty, over coffee to talk about whether McQueen’s embryos could be saved with a change in state law.

Sympathetic to McQueen’s story, McCreery agreed to help her draft a bill that would force courts to abide more strictly to fertility clinic contracts. Although she supports abortion, McCreery agreed with everyone else at the coffee meeting that — in a state where the legislature is overwhelmingly anti-abortion and already has a limited personhood statute — the bill would need buy-in from Missouri Right to Life.

“In order for the bill to move or even get a hearing,” she says, “these anti-choice groups were going to have to sign off on it.”

McQueen and I arrive at the Missouri capitol with plenty of time to spare. As we make our way through the marble building, McQueen is like the popular girl in high school — stalking the halls in her knee-high boots, smiling and waving to different lobbyists, knowingly navigating to her favorite bathroom, and chatting about House of Cards with McCaherty’s press person.

Once we enter the hearing room for the Committee on Children and Families, however, the friendly chatter comes to a startling halt, the vibe palpably tense.

“Everybody who’s gone through this has been through hell,” Darrell Angle whispers to me as roll call begins. An orthodontist from Portland, Angle was the first man to fight to keep his frozen embryos, and had flown to Missouri to testify in favor of McQueen’s bill.

McCaherty, the bill’s Republican sponsor, takes a podium facing a dozen state representatives. “This bill deals with one issue and one issue only,” he says. “In vitro human embryos in custody battles — across our state, and across our nation.”

No legislature in the country, he goes on, has yet passed a law about what to do in these cases, putting added pressure on judges to make decisions with little guidance. But this bill, he says, an amendment to the Missouri custody laws, could fill that hole.

The bill says that in the event of a dispute, a judge would act “in the manner that provides the best chances for the in vitro human embryo to develop and grow." (Another line stipulates that surrogates or any other parties involved in the creation of the embryo can also petition to use them.) On the question of child support, the bill also says that the courts should be able to terminate one parent’s legal rights and responsibilities as part of the agreement.

When Angle goes up to testify, he holds up his case, which he lost in 2008. “This,” he says, waving the stack of paper in the air in his left hand, “is a legal representation of confusion.” Holding McQueen’s bill in his right, he says, “This, this is a legal representation of clarity.”

But the next two hours is anything but clear. As the representatives question those testifying, there is frustration, anger, and confusion about what the word “procreate” really means; about whether two people who have made embryos should be called “parents”; about whether embryos can be in “custody” or instead are “owned.” In the absence of a shared vocabulary, the two sides often talk past each other.

A slight woman with straw-colored hair, Jen McLaughlin, takes the stand along with the twin daughters she adopted as embryos in 2009. McLaughlin holds up a blurry gray picture of two embryos in a petri dish, one labeled Sarah and the other Anna. “I do not feel the government should decide which embryos live and which embryos die,” she says.

The most gripping part of the afternoon comes with McQueen’s testimony. After emphatically giving her line about the bill being neither pro-choice nor pro-life, but pro-parent, she recounts the birth of her twins and the loss of her divorce case.

Opponents underscore the bill’s most incendiary 10 words — “in the best interest of the in vitro human embryo.”

"There’s not a day that goes by where I don’t look at my boys and imagine them frozen,” she says. “You can believe it’s a clump of cells — that’s fine, I respect your opinion. But please respect mine. I would like to give my babies the opportunity to be born — that’s all I’m asking. It’s not going to turn the world upside down.

“And I’m not the only one,” she says sternly. “There are a lot of people across the U.S. that are grieving — grieving parents. Grieving parents at the hands of a judge.”

McQueen’s testimony hits every beat perfectly: She has been wronged by a judge who refused to give her the children she’d been promised. She is the victim of a justice system ill-equipped to deal with the intersection of an emerging technology and the realities of modern marriage. The representatives nod sympathetically and ask few questions.

But the testimony against the bill shows just how much is at stake outside of McQueen’s case.

Opponents repeatedly underscore the bill’s most incendiary 10 words — “in the best interest of the in vitro human embryo” — to remind the lawmakers that this was a battle that had been fought before, all over the country. “There have been reams of decisions from the Supreme Court about what is life,” says Carla Holsty, a local family law practitioner. “This flies in the face of that.”

Sarah Rossi, the director of policy and advocacy at the American Civil Liberties Union in Missouri, is visibly heated as she explains that the 14th Amendment protects individuals from procreating against their will.

Finally, a University of Missouri law professor named Mary Beck suggests other legal solutions. "There are better options than this bill to take care of this problem," she says.

One is to require health insurance companies to cover the cost of IVF, which she believes would lead to more transparency and regulation, and ultimately allow couples to be more informed about their odds when deciding whether to do it. Another would be to require all fertility clinics to draft legally enforceable contracts — as opposed to un-notarized consent forms — before couples create the embryos that will bind them forever.

After McQueen says all her goodbyes, we jump in the SUV and grab drive-thru McDonald’s. “That was intense, dude!” she laughs, pulling back onto I-70 to begin the drive back to St. Louis.

Exhausted by embryo talk, she tells me about what she’ll do once all the drama of her fight is over: return to her law practice, pay bills on time, play her guitar, and spend more time with her kids.

After a short silence, we pass a billboard that says, “My daddy says I was a surprise,” on top of a picture of a smiling baby. Underneath, it says, “Baby’s heartbeat starts at 18 days.”

McQueen drifts back to her bill’s chances. She seems sincerely surprised at the opposition she heard all afternoon. “I’m thinking in my head,” she says, “what we could do to make it less about personhood, and make it more about the parent. What if we just said if the parent wants them, they get ’em? Take out all the other stuff?”

I ask her a question that had been wracking my brain all day: If all she ever really wanted out of this effort were her two embryos, then why did she go the personhood route at all? Why not write a bill that left the question of life — with all of its vagaries and politics — alone?

“Missouri Right to Life might oppose it,” she explains, taking a long sip of her Coke. “Maybe there’s a way for us to flip it, where the result is the same, but the approach is different. I think that might work actually — that’d be something I’d consider doing, if I can get everyone on board with it,” she adds, pausing. “But we’ll see what happens, with the way it’s written.”

A month later, in April, an unchanged House Bill 2558 went to committee vote, and passed six votes to two.

Just last week, McCaherty added an additional amendment to the bill that bans courts from approving the destruction of an embryo, or from leaving it “indefinitely in an environment in which it does not develop and grow.” Even with this more restrictive language, the bill passed unanimously through its second committee on Thursday. McCaherty is now waiting to see if they can put it to a full House vote before the mid-May end of the legislative session.

These changes to the bill since their first meeting in the coffee shop are why Democratic Rep. Tracy McCreery has now withdrawn all support.

“Somewhere along the way, this bill was hijacked,” McCreery says. “In my opinion it was hijacked by the Missouri Right to Life, to use Jasha. It’s no longer about Jasha and her embryos and who would get custody of those. It’s become a personhood bill.”

Gerard Nieters, legislative director of Missouri Right to Life, agrees that his group pushed hard for the bill to address the question of personhood. He and his colleagues didn’t want to focus on contractual agreements. “Our concern was that the argument about life itself was being left out of these court cases, and we didn’t want it to be that way in the bill.”

Nieters is also well aware of the political power of his organization. “If Missouri Right to Life opposes legislation, it’s probably not going to get passed — no matter what it is,” Nieters says. “That’s not to say that if we support something it will get passed, but we can probably stop something from going forward if we oppose it — and we make the legislators aware of that.”

This high-stakes national battle over reproductive rights wasn’t necessarily what McQueen wanted. At the beginning, after all, she tried to bring McCreery, a Democrat who supports abortion, into the fold. She’s also become friends with Mimi Lee, the woman who had fought for her frozen embryos after getting cancer treatments and lost her case last year. Lee, a 46-year-old anesthesiologist turned professional pianist from San Francisco, couldn’t be any farther from McQueen on the political spectrum, and yet was eager to testify in favor of her bill. (A last-minute illness ultimately forced her to cancel the trip to Missouri.)

Although Lee fiercely defends a woman’s right to have an abortion, she also believes her embryos are far more than property. As someone well versed in the stem cell debates of the early 2000s, she knows that, biologically, an embryo is a “clump of cells.” But as someone who lost her fertility just after doing IVF, she gives them more meaning — as having the potential for life. “This becomes somebody’s last chance, somebody’s hopes and dreams, something that people take for granted that they can have,” she says.

Lee is ambivalent about McQueen’s willingness to enlist the personhood movement to advance her case. But she emphatically believes that the frozen embryo fight doesn’t split neatly into pro-choice and pro-life camps.

"I get why the pro-choice people view us talking about frozen embryos this way as an attack,” she says. But she believes the frozen embryo issue also comes down to women’s choices.

“At different points in people’s lives, not just chronologically but where they are emotionally, having a child makes all the sense in the world, and at other times it doesn’t make any sense in the world,” she says. “We need to have all options possible so that women can continue to thrive and succeed.”

McCreery believes that McQueen was used by Missouri Right to Life, not the other way around. “She is kind, professional, and I take her at her word that she did not want this to become a personhood bill,” McCreery says. “I could find out later that I was being deceived. I think she is authentically sincere in her desire to fix this situation for future couples. I really mean that.”

Whether McQueen intended for her embryos to become a flashpoint in the abortion debate, she’s not unhappy about it. “I would be foolish to ignore the pro-life community and the pro-life special interest groups, because my bill would never get past anything,” McQueen told me last week. “This is politics being played.”

McQueen’s appeal will be heard this summer, regardless of whether her bill becomes law and thus forces the judge to award her the two embryos. In the meantime, she’s paying $40 a month to a fertility clinic in Philadelphia, where each embryo sits frozen, somewhere between person and property.

“I’ve been paying it,” she says, “and I’ll keep paying it until I get them.” ●

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