Divorce Train Wrecks, Family Law, Health Care / Medicine, Kids

I Want To Put A Baby In You: What Should Happen To Their Embryos When A Couple Divorces?

Divorce is already emotional -- and the fight over a couple's not-yet-conceived children just adds more tension.

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There's a lot to fight about in a divorce.

There’s a lot to fight about in a divorce.

The use of in vitro fertilization (IVF) to start a family is rapidly increasing in the United States. But as I’ve discussed previously, the IVF process often results in numerous unused embryos that remain cryopreserved after an IVF procedure. It should come as no surprise that divorcing couples will fight over these embryos, just as they might fight over assets and child custody. (Divorcers gonna divorce.)

The divorce process is already emotional and strained. But the fight over a couple’s not-yet-conceived children just adds an extra layer of tension to the equation. And unfortunately, the law is not always clear about resolving the dispute. A recent case now pending before the Colorado Court of Appeals provides an example of the fascinating issues the court must parse in these situations.

The Scenario: Prior to Mandy and Drake Rooks separating in 2014, they underwent IVF to grow their family. The procedures were successful, resulting in three children for the Rooks. As usual, a number of cryopreserved embryos were left over.

When they divorced, however, several problems arose. First, while they were happily married, Mr. Rooks had promised Mrs. Rooks that she could have four children. Second, Mrs. Rooks had no other viable eggs. In other words, the last of her viable eggs had already been fertilized with Mr. Rooks’s sperm. Ms. Rooks’s last opportunity to have a biologically related child was with the cryopreserved embryos.

A trial court, however, denied Mandy Rooks the right to use the embryos. Last week, Ms. Rooks’s appellate attorney, Katayoun Donnelly, argued before the Colorado Court of Appeals that Ms. Rooks was entitled to the remaining cryopreserved embryos to fulfill the promise Mr. Rooks made to her and to protect her right to procreate.

Although I have nothing but sympathy for Ms. Rooks, I think the answer obvious: consent is king, and Ms. Rooks should not be able to procreate with her ex-husband’s genetic material explicitly against his wishes.

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On the other hand, Donnelly has posed some excellent points to complicated issues.

Consent? Donnelly argues that consent was given by Mr. Rooks when he went through the IVF process with Ms. Rooks knowing that she was using his sperm to fertilize her last viable eggs. However, the clinic consent form both parties signed failed to provide clarity. Instead the form indicated that disposition of the embryos upon divorce would be determined by a court of law.

Precedent. In the judicial history of embryo disputes in the United States, nearly every case has ruled against a party wishing to procreate without the other genetic contributor’s permission. However, there are two exceptions: Szafranski v. Dunston and Reber v. Reiss. These two cases involved a woman diagnosed with cancer, and each underwent IVF specifically for fertility preservation. In each case, embryos were formed and cryopreserved. When the sperm provider (an ex-boyfriend in one case and ex-spouse in the other) wished to prevent use of the embryos, the court denied the request and awarded sole rights to the cancer survivor.

In contrast, Mrs. Rooks thankfully does not have cancer. However, as her attorney pointed out, Mrs. Rooks, like Dunston and Reiss, relied on her spouse when forming the embryos, and now has no other option for future genetically-related children.

Are We China? Much was made of the fact that the Rookses already had three children together. During oral argument last week, one judge noted that in Dunston and Reiss, the plaintiff was fighting for the ability to have even one genetically-related child. But should it matter? The United States does not restrict the number of children an individual or couple can have. And in Skinner v. Oklahoma, the Supreme Court stated expressly that “an individual’s right to privacy in procreative choices is a fundamental right.”

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No Parental Obligations. Mrs. Rooks and the trial court agreed that pursuant to Colorado law, Mr. Rooks could rescind his consent to use his sperm for the purpose of him being a parent, and Mrs. Rooks could have a resultant child from the “donated” sperm for which Mr. Rooks had no technical parental responsibility. However, Mr. Rooks’s attorney and the court point out that another jurisdiction, North Carolina (where Mrs. Rooks plans to relocate), may not allow the same result. Donnelly argues that res judicata and collateral estoppel prevent North Carolina from recognizing Mr. Rooks as a parent, in direct contravention of the rulings of the Colorado courts.

Additionally, the trial court held that Mr. Rooks has an interest in opposing any increase in his child support obligations. The court found that under Colorado law, any additional child in Ms. Rooks’s care would increase the amount Mr. Rooks owed in child support. This scenario would, of course, apply even if she adopted a child or conceived a child using donated embryos. Moreover, Donnelly argued before the appellate court that this is an unconstitutional intrusion into Ms. Rooks’s privacy and right to procreate.

In order to resolve these disputes without litigation, IVF clinics have improved their patient consent forms on the front end. The forms generally set forth the specific circumstances upon which the embryos may be used. However, given the high stakes involved, we will likely continue to see court cases attempt to balance the right to reproduce, the right not to reproduce, and the need for consent. Hopefully, the Colorado appellate court offers some clear guidelines for these tricky legal situations.

Earlier: I Want To Put A Baby In You: EmbryoMatch.Com?

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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