U.S. Supreme Court Asked to Consider Colorado’s Frozen Embryos Case

Case shifts from question of marital property to embryos’ personhood

A case of first impression in Colorado has changed shape from a marital property issue to a question of personhood in a recently filed petition to the U.S. Supreme Court. 

The original case, In re Marriage of Rooks, worked its way through the Colorado courts as an issue of dividing marital assets in a couple’s divorce. The petition to the U.S. Supreme Court asks the court to consider whether preserved embryos created during marriage are people or property. Attorney Rebecca Messall said the goal is for the trial court to reconsider the embryos’ fate as a matter of child custody instead of marital property. 

“These embryos are embryos, let’s be real here,” she said. “The trial judge called it out [as] biologically and scientifically life … Let’s start there.” Messall filed the petition on behalf of Mandy Rooks.

The attorney for Drake Rooks did not respond to requests for comment.

Mandy and Drake Rooks separated in 2014, and a dispute has lingered over who has the right to frozen embryos left over from successful In Vitro Fertilization treatments the couple underwent. They had three children from the procedures, and the remaining embryos contained the last of Mandy Rooks’ eggs. Mandy Rooks wanted more children, while Drake Rooks did not.

The clinic consent form Mandy and Drake Rooks signed for the IVF treatments did not clarify which spouse had the right to decide what to do with unused embryos in the case of divorce, instead stating a trial court would determine who has the rights to them if they could not agree.

Under Colorado law, an embryo is not a “person,” leading the trial court to treat the couple’s preserved embryos as marital assets to divide during their divorce. The Court of Appeals upheld the trial court’s use of a “balancing of interests” approach to award the embryos to Drake Rooks, which ultimately determined his interest in not having more children outweighed Mandy Rooks’ interest in having another child.

The Colorado Supreme Court in October vacated the lower court decisions and came up with a new multi-factor balancing test for the trial court to apply, and for other courts to use in similar future cases. Courts should consider factors such as the embryos’ intended use if preserved, an ex-partner’s ability to become a genetic parent in other ways and hardships on the ex-partner seeking to avoid becoming a parent. Courts should not consider, according the the Supreme Court, factors such as whether the ex-spouse wanting to use the embryos can afford a child or whether they can become a parent by non-biological means.

Additionally, under the Uniform Parentage Act, an ex-spouse will not be a parent of any child born through assisted reproduction after divorce unless the ex-spouse consents. But until this case, there had not been a Colorado statute or appellate decision addressing which former spouse has the rights to frozen embryos after divorce.

The petition construes the question to the Supreme Court as narrow. According to the brief, the Rooks case does not implicate a woman’s right to end a pregnancy under the body of case law around Roe v. Wade. 

It also does not ask the court to decide when life begins, states the brief. According to the brief, the case record is undisputed that the embryos have started life.

The petition’s framing contrasts with the Colorado courts’ balancing of one person’s right to procreate with another’s right not to procreate. The petition argues once embryos have been created, a parent of “extracorporeal” embryos has already procreated.

“This reality moots his claimed right to negate ‘procreation’ by withholding consent for implantation,” states the petition.

Asked whether Rooks v. Rooks could affect areas of law outside marriage dissolution, despite  the narrow framing of the issue petitioned to the Supreme Court, Messall said she does not think it has to implicate other issues such as privacy or pregnancy termination.

Scattershot Case Law

In 2018, an Ohio judge dismissed a case brought by Wendy and Rick Penniman after freezer malfunctions at two fertility clinics resulted in the loss of thousands of eggs and embryos for hundreds of couples. The Pennimans asked the court to rule life begins at conception, and to give the embryos legal standing as people. They appealed the judge’s dismissal to the 8th Ohio District Court of Appeals.

A 1992 case out of Tennessee, Davis v. Davis, set the precedent for courts using a balancing test to determine which ex-partner receives frozen embryos in a dispute. The court made clear that the conflicting rights to procreate, or not carry equal significance.

The Tennessee Supreme Court looked at three main factors in its balancing test: The burden unwanted parenthood would put on the ex-husband, his ex-wife’s desire to donate the frozen embryos to another couple and her ability to become a parent by other ways in the future.  Ultimately, it ruled in favor of the ex-husband, who wanted to discard the frozen embryos. 

Courts in other jurisdictions have addressed disputes over frozen embryos in the years since, with most decided in favor of the partner who did not want the embryos used. In California, couples have to decide ahead of time what will be done with their frozen embryos if they divorce. A judge in the state ruled in 2015 against Mimi Lee, who sought to keep embryos created with her ex-husband after they divorced in 2013. The couple had signed a consent form for destruction of the embryos if they divorced, and the judge upheld the agreement.

Arizona passed a law early in 2018 directing what happens to frozen embryos if a couple does not agree on whether to keep or destroy them: The frozen embryos go to the person who wants them “to develop to birth.” It was the first law of its kind passed.

In the California case, Judge Anne-Christine Massullo noted the incongruity of having to settle disputes of this kind in court.

“It is a disturbing consequence of modern biological technology,” she wrote, “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.” 

— Julia Cardi

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