Supreme Court creates rules for divorced couples’ frozen embryos

When Mandy and Drake Rooks divorced in 2014, they could not agree on what to do with the embryos they had created and frozen years earlier.

Mandy Rooks wanted to keep the six embryos, which are fertilized eggs only days in development, in case she wanted to later become pregnant again, court documents from the ensuing legal battles explain. But Drake Rooks wanted the embryos thrown away — he did not want to have a fourth child with his former wife once they were separated.

Although a Colorado Supreme Court ruling issued Monday did not resolve the former couple’s disagreement, the decision did create new guidelines on how such cases should be decided if divorcing spouses can’t come to an agreement. States have grappled with custody battles over embryos for years, each reaching a different solution in the absence of overarching federal guidelines.

Courts must attempt to balance the interests of both parents when deciding the fate of such embryos, according to the Supreme Court ruling. The justices outlined a series of factors that must be considered in such cases and also listed conditions that can’t be part of a judge’s decision. The justices also sent the Rooks case back to the district court that originally handled the case. That court will now have to use the new guidelines to make a decision about who should get the embryos.

“Although this case fundamentally concerns the disposition of a couple’s marital property, it presents difficult issues of procreational autonomy for which there are no easy answers because it pits one spouse’s right to procreate directly against the other spouse’s equivalently important right to avoid procreation, and because the fundamental liberty and privacy interests at stake are deeply personal and emotionally charged,” Justice Monica Márquez wrote in the majority opinion.

While other states have considered similar cases, the guidelines issued by the Colorado court are some of the most specific created by any state on the issue, said Glenn Cohen, a Harvard University law professor who specializes in bioethics and the law. The case could eventually make its way to the justices of the U.S. Supreme Court, who would consider one specific question, he wrote in an email.

“Namely, does the Constitution protect a right not to be a genetic parent?” he said.

A balancing test

Both the district court and the Colorado Court of Appeals awarded the embryos to Drake Rooks in previous rulings. His former wife appealed both of those decisions.

The Supreme Court ruling was a victory for Mandy Rooks, her attorney Katay oun Donnelly said Monday.

“We are very pleased with the result of the decision today as it gives my client the opportunity to go back to district court and fight for her embryos,” Donnelly said.

Drake Rooks’ attorney, Jim Giese, did not return a call requesting comment before The Denver Post’s deadline.

The Supreme Court justices said earlier judges had incorrectly factored in extraneous information when making their decisions, according to the ruling.

Among other issues, judges must consider how both people would use the embryos, whether a person can have children without the embryos and any financial or emotional hardships the person who does not want to be a parent would endure. Courts cannot consider if the person who wants to bring the embryos to term can afford to raise a child, how many children that parent already has or whether that person could adopt or raise nonbiological children.

The court said it did not consider the embryos as humans while making its decision.

Three justices, including Chief Justice Nathan Coats, did not agree with the majority opinion and said that a court should never force a person to become a parent. Instead, the dissenting justices wrote that both donors must agree to destroy or use the eggs. If no decision can be made, the eggs will remain frozen in storage.

“The decision to have children is one of the most consequential choices people make in life,” wrote Justice William Hood in the dissenting opinion. “The considerations that go into it are numerous and personal; it is not a decision that most would leave to their dearest friends, let alone the state.”

The Rooks had to take their dispute to the courts because the contracts they signed with the fertility clinic did not specify what would happen to the embryos should the couple divorce, the Supreme Court ruling states. The couple already had three children through in vitro fertilization, where an egg is fertilized in a laboratory and then placed in a woman’s uterus.

“This is important for people who are planning their reproductive futures to make sure the facility where they are freezing embryos executes clear, valid agreements specifying who may use the preembryos upon divorce to avoid getting into this situation,” Cohen, the Harvard professor, said in an email.

Colorado law states that a person who donates an egg or sperm can opt out of legal parenthood of a child born of that assisted reproduction in the case of divorce, Donnelly said. However, the state does not specify what should be done with remaining embryos.

“It’s always better to have more guidance from the legislature as to where we stand in Colorado,” she said.

Larger ramifications

Attorneys for Drake Rooks have 90 days to petition the U.S. Supreme Court to consider the case, Donnelly said.

The U.S. Supreme Court likely wouldn’t consider reviewing the case until the lower court applies the new test to determine whether the Rooks’ embryos should be destroyed or used, Cohen said.

“Only after that happens, and possibly subsequent appeals to the Colorado intermediate appellate and Colorado Supreme Court, would the U.S. Supreme Court likely consider this a proper vehicle to decide the issue, and even then they may want to duck the question,” Cohen said.

If no petition is made, the case will be sent back to a Colorado district court.

Other state courts contemplating similar cases will now look to the Colorado Supreme Court ruling for guidance, though it has no legal power outside the state’s borders, Donnelly said.