Divorced Couple’s Embryos Must Be Destroyed

DENVER (CN) — A divorced couple's frozen embryos should be discarded, despite the mother's wish to use them, the Colorado Court of Appeals ruled.

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 they were the wife's last eggs, the embryos are her last chance to have a biological child, Colorado Court of Appeals Division VI Judge Diana Terry wrote in the Oct. 20 ruling.

After the divorce the father asked that the embryos be destroyed, and a Garfield County judge decided that the embryos had to be discarded if the parents could not mutually agree on their fate.

The appeals panel affirmed.

"The trial court found that the contract was ambiguous as to how the court should award the embryos in the event of dissolution," Terry wrote for the appeals court.

"It resolved the ambiguity by construing the agreement to require both parties' mutual agreement before any of the embryos could be thawed and implanted, and it therefore ruled that absent such an agreement, the embryos would be thawed and discarded on dissolution of the parties' marriage."

The appellate court added that the wife could have made her wishes clearer earlier in the process.

"Wife could have contracted to receive the embryos on dissolution of the marriage, but did not do so, and instead requested in her supplemental trial brief that the court decide the issue based on a balancing of the parties' interests," the opinion states.

"Applying the 'balancing of interests approach,' the court determined that husband's interest in not having more children with wife outweighed wife's interest in having another child."

Appeals Court Judges Maria Fox and Robert Hawthorne concurred.

They cited the used the Uniform Parentage Act of 2002, which established a former spouse's right not to parent a child born from IVF after the dissolution of a marriage.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit