Family Law

Forget Marijuana, The Biggest Legal Issue Coming Out of Colorado Is Babies

In this case, the Colorado Supreme Court will decide what to do with the 'leftover' frozen embryos of two feuding exes.

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It’s like a nerd Christmas! Yesterday, the Colorado Supreme Court heard oral argument in the hotly contested Rooks matter. That case involves what to do with “leftover” frozen embryos, and pits two feuding exes against one another. The ex-wife wants to use the couple’s remaining cryopreserved embryos to conceive another child, despite the marriage being over. As you can guess, her ex-husband wants no part of that.

Adding to the nerd excitement, this was the first case argued before the newly appointed Colorado Supreme Court Justice Melissa Hart, an acclaimed constitutional scholar. Hart took the seat of the previous Justice, Allison Eid, who herself had recently taken Justice Neil Gorsuch’s old spot on the Tenth Circuit. Hart is known for her previous liberal political activities, but also throws significant love to the Colorado Federalist Society chapter. So her debut yesterday was eagerly anticipated by nerdy court watchers.

Recap.  If this case feels like deja vu, it’s because I’ve written about it before. As a reminder, the facts involve Mandy and Drake Rooks, a once-married couple who underwent in vitro fertilization (IVF) in order to have children. With the help of modern technology, the couple grew their family by three kiddos. First a singleton boy, and then twins.

However, Mrs. Rooks argues that Mr. Rooks promised her unequivocally that they would have a big family, and that meant more than a mere three children. The couple divorced, and a divorce court was left with the job of deciding who would receive rights to their remaining six cryopreserved embryos. While medical consent forms between the parties are generally helpful in these situations, in this case, the Rooks’s medical consent form specifically noted that in a case of divorce … the court would decide. Take note, lawyers. That kind of clause isn’t helpful.

The trial court found that Mr. Rooks’s interest in not having more genetic children with Mrs. Rooks was persuasive, and awarded the embryos to him for the purposes of destruction.  On appeal, the Colorado Court of Appeals, following a balancing of interests approach, again ruled in favor of Mr. Rooks. So now it’s the Colorado Supreme Court’s turn.

For Procreation. Katayoun Donnelly is the attorney for Mrs. Rooks, and she’s like, really smart, but in an actual way. She understands that the legal rights to genetic material are becoming increasingly complex in our technologically evolving world of genetic donors, surrogates, and cryopreservation.

Is IVF Like Having Sex? However, Donnelly reaches a conclusion that I still don’t find compelling.  She contends that once someone agrees to IVF, and for his or her genetic material to be used to form embryos, then whoever (among the genetic contributors) wants to use those embryos has an overriding interest that outweighs the objections of a genetic contributor who wants to not procreate. Finders, keepers, judgment entered, mic drop.

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In support of the argument, she analogizes agreeing to IVF to choosing to have sexual intercourse. She argues that once someone is pregnant, the genetic contributor (the dude who accidentally impregnated a woman) can’t object to the child being born. And here, because Mr. Rooks agreed to have his genetic material used to form embryos, he cannot now object to their use in procreation.

But for myself and other practitioners, there is clearly a stark difference between the formation of an embryo, and the actual placement of the embryo in a person’s uterus for the purpose of having a child. More to the point, going through IVF, and creating embryos, does not mean that all of those embryos must be used, even over the objection of one of the genetic contributors.

That Was Uncomfortable. Unfortunately, the attorney for the side I’m pulling for — Mr. Rooks — was less clear in his arguments. In a weird moment that I assume was a mistake, he said that he agreed with his opponent’s position. (Donnelly, of course, had to be delighted by the concession.)

In answering questions on what kind of balancing test the court should employ, and what factors should be considered, Mr. Rooks’s attorney asserted that the court should look at how many children a person already has, and evaluate their financial condition to determine if they should be able to have the rights to use an embryo for conception. What? That does not sound like a good idea. And as pointed out by Donnelly, any such inquiry would definitely run into constitutional issues. Obviously, we don’t require people to earn a certain level of income to have children, and we don’t cap the number of children people are allowed to have.

In another moment that only nerds could enjoy criticizing, Mr. Rooks’s attorney repeatedly referred to the embryos in question as merely “eggs.” Would that it were! If they were merely eggs, we wouldn’t have this problem in the first place, because Mr. Rooks’s genetic material wouldn’t be involved!

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A Surprise Pregnancy.  Of course, I can’t avoid mentioning the soap-opera twist to the case since the appellate court heard argument. Since that time, Mrs. Rooks had another child, her fourth, after all. And obviously, she didn’t use the embryos in controversy. Normally, the birth wouldn’t seem so consequential, except that part of her argument was that she used her last viable eggs in IVF with Mr. Rooks, and had no other way to have another biological child, as promised.  Hmm.

Of course, we don’t know the details of how the baby was conceived. For instance, maybe she used donor eggs for the latest child, and so the frozen embryos are still her only chance for another biologically related child. But it certainly seems likely that this fact moves her case even further away from helpful case law. A few famous cases favor women who suffered from cancer, and who needed their embryos to have any children at all. Courts have sided with women in these desperate situations. But clearly, that isn’t Mrs. Rooks right now.

Talking to Donnelly after the argument, she notes that a key takeaway, whether you agree with her position or not, is the importance of going into IVF with your eyes open, and with a real understanding of the implications for the future. And, with that at least, I wholeheartedly agree.

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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