An Embryo-Custody Battle Surfaces In Colorado

Who gets what in a divorce? Separating couples face this question and must divide their assets, including their home and retirement investments along with furniture, family photo albums and heirlooms. But there are other things, too.

Divorce cases are seldom simple, and some can be downright complicated as the one in which a Colorado couple fight over six frozen embryos created with his sperm and her eggs. Drake and Mandy Rooks had three children through in vitro fertilization. They divorced, but the embryos remained in question. He wants them destroyed. She wants them preserved. So who gets them?

Right to procreate or not to procreate

The Colorado Supreme Court is in the midst of deciding the Rooks’ case which has constitutional repercussions. How do you balance a person’s right to procreate against another person’s constitutional right not to procreate?

There may be as many as 1 million frozen embryos preserved in liquid nitrogen and stored in facilities throughout the country, and for the past 25 years, embryo-custody battles have perplexed state courts resulting in no consistent outcome.

Different states have ruled in favor of the parent who sought to use embryos while other times ruled in favor of the parent who wanted them disposed. For example, a California court in 2015 ruled against a woman who wanted to use the embryos created with her former husband when she became infertile after a bout with breast cancer.

High profile cases such as Sofia Vergara’s

There have been other high profile court cases, too, such as actress Sofia Vergara’s and her fight to have two fertilized eggs remain frozen, despite an ex-fiance’s objection.

The Rooks’ case was heard in early January by the Colorado Supreme Court after Mandy Rooks lost an appeal before a lower court, which awarded the frozen embryos to her former husband. That court’s decision was based on contracts the couple signed in the fertility clinic which houses the embryos. The contracts stipulated that “a court of law” would decide the fate of the embryos if a divorce occurred.

The Rookses and their attorneys await a ruling, one that could lead to an appeal all the way to the U.S. Supreme Court, which would finally settle things through a judgment that would prevail nationwide.