Colorado Supreme Court Hears Arguments in Frozen Embryo Case

Court weighs rights of divorced couple in awarding cryopreserved embryos

The Colorado Supreme Court has the unusual responsibility of deciding which parent has control over cryogenically frozen embryos.

The state’s highest court heard oral arguments Jan. 9 on a case that is thought to be first of its kind in the state of Colorado. In In re Marriage of Rooks, a post-divorce property case involves an ex-wife who wants to use the couple’s remaining frozen embryos to conceive another child, despite being divorced from the father and over his objections to have another child. The Colorado Supreme Court was asked to consider how to balance one person’s constitutional right to have — or not to have — children.

James Giese, a family law attorney who represents Drake Rooks argued that “[Drake Rooks] already has three kids, doesn’t want another child and it has been recognized throughout many jurisdictions throughout the country that you can’t be forced to procreate. Roe v. Wade pretty much stands for that proposition that if dad wants the child, mom can still terminate the pregnancy. In my eyes, it’s the same sort of situation.”

Despite hard-fought arguments from both sides in trial, the other question remains for the Colorado Supreme Court: If one party does not want to be a parent, does the other still have the constitutional right to withdraw consent to be a gestational parent?

To read this story and other complete articles featured in the January 15, 2017 print edition of Law Week Colorado, copies are available for purchase online.