Colorado Supreme Court Issues Embryo-Custody Guidelines

DENVER (CN) – Who gets custody of a divorced couple’s frozen embryos after their divorce? Implementing a balancing approach, a divided Colorado Supreme Court Monday turned the question back to a trial court with new guidelines to determine custody rights.

Mandy Rooks and Drake Rooks dissolved their 12-year marriage in 2014, after having three children together using in vitro fertilization. Six embryos remain in cryo-storage, as the couple planned to have four children. Because she believed the embryos were her last chance to have a biological child, Mandy Rooks fought for their custody in a case that seemed to pit an individual’s right to reproduce against an individual’s right to avoid reproduction.

Drake Rooks said he did not want to parent any more children with his ex-wife and asked that the embryos be destroyed. Both a district court and the Colorado Court of Appeals awarded the embryos to him.

Rather than make a broad rule, the Colorado Supreme Court opted to weigh each party’s rights on a case by case basis.

“The framework that we adopt today recognizes that both spouses have equally valid, constitutionally based interests in procreational autonomy,” wrote Colorado Supreme Court Justice Monica Márquez in a 41-page opinion.

The court further “encourages couples to record their mutual consent regarding the disposition of remaining pre-embryos in the event of divorce by an express agreement.”

In the absence of such foresight, as in the Rooks’ case, Márquez outlined which factors may be considered—as well as certain factors that should be left off the table, including how many children had already been born and whether the party intending to use the embryos could financially support a larger family.

Márquez pointed out that both the trial court and the appellate court erred in holding Mandy Rooks’ finances against her, as well as the fact that she was already a mother.

When asked by a divorcing couple to settle the fate of their frozen embryos, Márquez wrote that the court must consider why a party wants to preserve the embryos, why they were frozen in the first place, and what sort of burden the opposing party would take if the embryos were allowed to develop into biological children. Finally, “a court should consider either spouse’s demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce proceedings.”

In weighting these various factors, Márquez wrote a trial court can reach a balanced conclusion.

But the balancing method did not receive unanimous support from the court.

“Because I believe a court should never infringe on a person’s constitutional right to avoid procreation through in vitro fertilization, I disagree with the majority’s decision to entangle our courts in such deeply personal disputes by employing a multi-factor balancing test,” wrote Chief Justice William Hood in a 17-page dissent supported by Justices Nathan Coats and Carlos Samour. “Instead, I would embrace the contemporaneous mutual consent approach.”

Unlike the balancing approach which ultimately reaches a decision, Hood argued in favor of maintaining any frozen embryos status quo with both parties bearing the storage costs, until both parties reach a mutual decision.

Márquez worried this mutual consent approach could give unfair leverage to one of the parties and further pointed out that if parties were able to settle the dispute on their own, then they wouldn’t be in court.

Nevertheless, Hood wanted no part in deciding either the fate of the Rooks’ frozen embryos or any other couple’s.

“The decision to have children is one of the most consequential choices people make in life,” Hood wrote. “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.”

Given the state Supreme Court’s new instructions, the case will return to Garfield County District Court, where the couple first filed for divorce in 2016.

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