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Colorado supreme court to rule on fate of frozen embryos after divorce

15 January 2018
Appeared in BioNews 933

A divorced couple's legal battle over their frozen embryos has reached the Colorado Supreme Court.

Mandy and Drake Rooks had three children together via IVF during their marriage, and have a further six embryos still frozen. The couple separated in 2014, but Mrs Rooks wished to use the remaining embryos to have another child, while Mr Rooks, wanted the embryos to be destroyed. A contract that the couple signed when the embryos were created contained the option to specify the fate of any remaining embryos should the marriage break down, but the couple opted to leave the decision to the courts. 

'The whole battle is if you don't want to have a kid, can you prohibit someone from implanting those eggs against your consent?' said Jim Giese, Mr Rooks' attorney, to ABC.

The initial trial court ruled in favour of Mr Rooks, prioritising his interest not to have more children. The Court of Appeals – applying a balancing test – also ruled in favour of Mr Rooks.

'They weighed whether the mom has more than one kid, whether she is going to be able to have more and whether she can economically afford the kids,' Giese told Denver 7.

However, Katy Donnelly, representing Mrs Rooks, contends that Mr Rooks no longer has a recognised constitutional right over the embryos. Since he consented to the fertilisation, Donnelly argues that the embryos now belong to the gestational parent.

Disputes of this kind are not new in the USA, where the fertility sector is not governed by national legislation or a regulatory body, and so decisions may vary between states. However, the Colorado Supreme Court's decision in this case may have wide-reaching implications as the question it must consider is framed in constitutional terms: does the right to procreate trump the right not to?

'For the first time we will actually get a ruling about what the US constitution means or doesn't mean in this context,' Harvard's Law Professor Glenn Cohen told ABC News.

The constitutional angle introduced by Mrs Rooks' lawyers may be because relying on previous case law would likely be unsuccessful. State courts have tended to rule in favour of women who were cancer survivors or who had no children. Mrs Rooks has three children from the marriage, and although she claimed the embryos were created using her last viable eggs, she has since had a fourth child, whose genetic origins have not been revealed.

Divorced couple's fight over frozen embryos ends up at Colorado Supreme Court
The Denver Channel |  9 January 2018
Divorced couple take their fight over frozen embryos to Colorado Supreme Court
ABC News |  10 January 2018
Forget marijuana, the biggest legal issue coming out of Colorado is babies
Above the Law |  10 January 2018
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