Divorced couple take their fight over frozen embryos to Colorado Supreme Court

— -- What happens when the parents who created frozen embryos go to war with each other over whether to procreate with them or destroy them?

That's the battle now being waged before the Colorado Supreme Court by the now-divorced Mandy and Drake Rooks. While disputes over custody of frozen embryos are not new -- the high-profile case involving actress Sofia Vergara, for example, garnered significant attention -- such cases are usually decided on common law grounds or on the merits of agreements between the parents signed before they separated.

The Rooks case is different because it frames the dispute in constitutional terms: Does the right to procreate trump the right not to? "For the first time," says Harvard law Professor Glenn Cohen, there’s a chance "we’ll actually get a ruling about what the US constitution means or doesn’t mean in this context."

The Rooks married in 2002 and employed in vitro fertilization (IVF) using Mandy's eggs and Drake's sperm to have three children. When they decided to divorce in 2014, six of the embryos created by that process remained frozen in a Denver clinic. Drake did not want more children and wanted the embryos destroyed. Mandy wanted them preserved, hoping for a larger family and believing the embryos were her only chance at future pregnancy. But the contract they signed when they created the embryos left it up to courts to decide who should get the embryos if the marriage dissolved.

According to Drake’s attorney, Jim Giese, "He feels that he should not be forced to have other children by her getting these pre-embryos and implanting them."

So far court decisions at the trial and appellate levels have agreed and have awarded the eggs to him, ruling that “his interest in not producing additional offspring prevails over (Mandy’s) interest in having a fourth child”.

But Tuesday’s oral arguments before the Colorado Supreme Court previewed the difficult broad implications of this case.

Mandy’s lawyer, Katy Donnelly, contended that having consented to fertilize those eggs, "there is no recognized constitutional right” for Drake “not to procreate after the pre-embryos have already been created.” When a justice asked if Roe v Wade (the decision granting a right to abortion) did that very thing for women, Donnelly suggested that granting Drake a right to avoid procreation would be akin to allowing a man to make a woman have an abortion once she is carrying an embryo he helped create.

Professor Cohen said the Roe case may indeed support Mandy because it “affirms a woman’s right to continue gestation despite her husband’s objection that he does not want to be a father." But he cautions that Roe “is a case where someone is ALREADY gestating, and its application to a case where gestation has not begun (such as this one) is uncertain.”

According to Cohen and others, courts have sided with the wife in cases similar to this but have done so based on the argument that the embryo was her last chance at reproduction. That is an open question here since Mandy has had a fourth child while this case has wound its way through the court system. But she has not revealed the heritage of that child.

For Giese, “The whole battle is if you don’t want to have a kid, can you prohibit someone from implanting those eggs against your consent. That’s the whole ball of wax right there.”