In a first-of-its-kind case in Colorado, the state Supreme Court reversed a lower court decision awarding leftover frozen embryos from in vitro fertilization treatments to an ex-husband after a divorce.
In deciding In re the Marriage of Rooks, the court has laid out a balancing test that recognizes parents’ competing interests to procreate or not as equally important. When a divorcing couple does not have a pre-existing agreement for what to do with cryopreserved embryos, the court ruled, the balancing test must be used. It includes factors such as the parties’ ability or inability to become genetic parents through other means and hardships that would be placed on the party who wants to avoid becoming a parent.
The balancing test does not include, the court said, factors such as whether the party seeking to become a parent can afford a child or could parent non-biological children.
“Although this case fundamentally concerns the disposition of a couple’s marital property, it presents difficult issues of procreational autonomy for which there are no easy answers because it pits one spouse’s right to procreate directly against the other spouse’s equivalently important right to avoid procreation, and because the fundamental liberty and privacy interests at stake are deeply personal and emotionally charged,” wrote Justice Monica Márquez in the majority opinion.
Justice William Hood dissented with Justice Carlos Samour and Chief Justice Nathan Coats joining. Hood wrote that he believes the use of frozen embryos is not for courts to decide. He said he would apply the contemporaneous mutual consent approach, which requires embryos to be preserved until a divorcing couple can agree on what to do with them.
“Because I believe a court should never infringe on a person’s constitutional right to avoid procreation through IVF, I disagree with the majority’s decision to entangle our courts in such deeply personal disputes by employing a multi-factor balancing test,” Hood wrote.
Mandy and Drake Rooks separated in 2014, and a dispute has lingered over who has the right to frozen embryos left over from successful IVF treatments. 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.
A district court and the Colorado Court of Appeals decided in Drake Rooks’ favor. The Court of Appeals affirmed the trial court’s use of a “balancing of interests” approach to award the embryos to him, deciding that his interest in not having more children outweighed Mandy Rooks’ interest in having another child.
The Colorado Supreme Court reversed the lower courts’ rulings, and ordered the trial court to reconsider the case under the balancing test laid out.
Under Colorado law, an embryo is not a “person.” And 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. The Colorado Probate Code has adopted a similar law. But until this case, there had not been a statute or appellate decision addressing which former spouse has the rights to frozen embryos after divorce.