Court to weigh if one parent has the right to use frozen embryos if the other objects
The case could go to the Supreme Court
Adapted from a story by The Washington Post’s Ariana Eunjung Cha.
Drake Rooks met his future wife Mandy through mutual friends. He was a police officer at the time, and she a nurse. In 2002, they got married and settled in the small town of Glenwood Springs, Colo., just north of Aspen. Years later, with the help of in vitro fertilization, they had a baby boy and then boy-girl twins.
There were still six frozen embryos, created from his sperm and her eggs, left after the twins were born.
But after the twins were born, their relationship began to fall apart. A messy divorce ensued.
The court, recognizing both as loving parents, awarded them joint legal custody of their three kids. Over Drake’s objections, the judge said the children would live with Mandy despite her planned move to North Carolina.
But over Mandy’s objections, the judge awarded Drake the frozen embryos — per the contracts the couple had signed in the fertility clinic where the embryos were stored, which specified that “a court of law” would decide their fate in the event of a divorce.
The dispute
Drake didn’t want any more children in general, and certainly not with Mandy. She felt differently. She had always imagined a large family and, given her trouble getting pregnant, she thought the embryos were her only hope for having more babies. She wanted them preserved.
The couple’s embryo-custody battle reached the Colorado Supreme Court, which heard oral arguments in the Rookses’ case yesterday.
The implications of the Rookses’ embryo-custody battle
The Rookses’ dispute is one of a number of embryo-custody battles that have landed in the courts over the past quarter-century, resolved by different judges in different states with no consistent pattern. Rulings sometimes have awarded the frozen contents to the parent who wanted to use them, while other times determining that they could be discarded.
Although several other cases have made their way to states’ high courts, legal experts say the issues in the Rookses’ case are different.
“Constitution questions are front and center in a way that they have not been in the other cases,” said Harvard law professor I. Glenn Cohen. And if the judges decide the Rookses’ dispute on such grounds, that would allow it to be appealed to the U.S. Supreme Court — where a ruling would apply nationwide.
Cohen said the central issue focuses on how to balance one person’s constitutional right to procreate with another’s countervailing constitutional right to not procreate. The question parallels similar arguments used in other reproductive health cases, namely the Supreme Court’s landmark 1973 abortion decision in Roe v. Wade. If women have the right to not be forced to be a gestational parent, do men — or women — have the right not to be forced to be a genetic parent?
Absolutely, says Drake Rooks, 50. “It just seems like a guy should be able to decide whether he wants more children or not and with whom,” he said in an interview last week.
Mandy Rooks, who is 10 years his junior, flips the argument and comes to the opposite conclusion. “No one,” she said in an emailed statement, “has the right to tell me that I have to kill my offspring.”
Attorney Katayoun A. Donnelly, who represents Mandy Rooks, said that although the first child born from a cryopreserved embryo was in 1984, courts “have not been addressing this issue head-on.”
Drake Rooks “is saying he has a constitutional right not to be a parent, but he forgets it is past the point of conception,” Donnelly said. A woman who wanted a man to donate his sperm would have no legal right to force that, she noted. By contrast, “he has already agreed to use his sperm with the eggs. So we are in this unknown territory.”
Drake said the court’s decision allowing his three children to be moved out of state strengthened his resolve that the embryos should be discarded. “Why would someone want to have more kids when he can’t take care of the kids he has?” he asked.
His attorney, James Giese, who handled the divorce and has been working pro bono since its resolution in 2016, argues that the current case rests on a person’s constitutional right to privacy and to not have the state unduly influence whether someone should have children. Giese contends there should be mutual consent for stored embryos to be used.
“It kind of runs against all decency,” he said, “forcing a parent to have a child they don’t want.”
Mandy, who lost her earlier appeal before a lower court, declined to comment beyond her brief statement.
