Family Law

My Home State Of Colorado Has A New Take On Embryo Disputes

With a 45-page opinion and a 15-page dissent, it's a lot to chew on. So, what did the court say?

By  
on

As a resident of Colorado, and an attorney overly excitable about assisted reproductive technology legal issues, I have been eagerly awaiting the Colorado Supreme Court’s ruling in the In re Marriage of Rooks case. The hearing in the case was all the way back in early January 2018, and I’ve basically been hitting “refresh” on my computer since then. I was just about to stop obsessing about the case when it finally appeared on the Colorado Supreme Court’s announcement page on Monday! Like a long expected gift in the mail, it was nice to finally have it here. And with a 45-page opinion and a 15-page dissent, it’s a lot to chew on! No wonder it took over 10 months to publish the opinion.

Remind Me What This Case Is All About?

The Rooks case is not so different from many embryo disputes throughout the country. While married, Mandy and Drake Rooks had problems conceiving. They sought the help of a fertility doctor, who would then guide them through the in vitro fertilization (IVF) process. The procedures were successful and, at the time of the couple’s divorce, they had successfully conceived three children. They also had six cryopreserved embryos remaining. (Or “pre-embryos,” as the opinion notes as the technically correct name for an embryo prior to being transferred into a uterus. But I will stubbornly stick to the colloquial term “embryo.”) Mandy Rooks wanted to use the remaining embryos for more children, on her own. She noted that her ex-husband, Drake Rooks, had promised her a large family with many children. Mr. Rooks, however, did not want the embryos used after the divorce, and instead planned to discard the embryos so that they were not used.

In other similar U.S. court cases, most courts have held that embryos are not to be used when there’s a dispute between divorcing parties. That was the ruling of both the trial and appellate courts in the Rooks case. However, two cases involving disputed embryos have gone against the grain. In both Reber v. Reiss and Szanfranski v. Dunston, courts in Pennsylvania and Illinois, respectively, ruled for the party wishing to use the embryos for reproduction.  In both cases, the plaintiffs were women who had undergone IVF and formed embryos with their partners to preserve their fertility after a cancer diagnosis. When the other genetic contributor, the ex-husband and ex-boyfriend, changed their minds, the plaintiffs were left with no other options for a genetically-related child. Ms. Rooks equated her case to these situations, arguing that whether the child is the first or fourth child should not make a difference. These embryos were her only chance at another child biologically related to her.

So What Did The Court Say?!

A lot! First, the Court said that any court arbiter should always look to whether the parties to the divorce had an agreement, and honor that agreement. “We do not interpret a party’s commencement of the IVF process, on its own, to establish the party’s automatic consent to become the genetic parent of all possible children that could result from successful implantation of the [embryos].” In other words, going through IVF is not the same as having sex with someone, and having that person get pregnant. Further, the Court found that to “the extent possible, it should be the progenitors – not the State and not the courts – who by their prior directive make this deeply personal life choice.” Good ruling!

Colorado Is (Luckily) Not Arizona.

Sponsored

The Colorado Supreme Court’s rule is in contrast to the concerning recent legislation in Arizona. The new Arizona statute requires judges in divorce matters to award disputed embryos to the party “most likely to bring them to life” regardless of what any agreement between the parties may say from prior to going through IVF or prior to the divorce. Eek! So If Ms. Rooks had strategically moved to Arizona and filed for divorce (at least after the passing of this legislation), the Arizona court would have been required to award her the embryos.

Improper Considerations.

While the Colorado Supreme Court found that the trial court and appellate court took the right path in looking for an agreement between the parties first, that doesn’t help much in the Rooks case itself. Their agreement merely stated that the eventual divorce decree would govern any dispute over embryos. So given the lack of any contractual agreement, there needed to be some way of determining who should prevail. The lower courts had applied balancing tests, and the Colorado Supreme Court’s opinion agrees that factors must be balanced. But it took issue with some of the factors that the lower courts had considered. The Court set forth a multitude of factors that may be considered, and then specifically noted that the following should not be considered in weighing the parties’ interests.

  • Money (Or Lack Thereof). Courts may not consider whether the party seeking to be genetic parent can afford another child. This is a simple and wise rule. After all, you might win the Powerball tomorrow, an, more importantly, we want to avoid economic discrimination in this personal and sensitive area.
  • Prior Children. The number of a party’s currently-existing children, “standing alone,” should not be reason to preclude the use of the embryos. This, of course, was noted by Drake Rooks’s attorney as one of the key distinctions between this case and the exception (Reber and Szafranski) cases.
  • Ability To Have Non-Biologically Related Kids (aka Adopt). The court should also not consider if the party wishing to use the embryos for reproduction could achieve parenthood by means such as adoption — a means which would not achieve the goal of a biologically-related child.

The Court concluded that because the lower courts considered these inappropriate factors in attempting to balance the Rookses’ interests, the judgment of the court of appeals must be reversed and the case remanded to the trial court with instructions to balance the parties’ interests appropriately.

Sponsored

Equality! (Is That Good In This Context?)

Perhaps one of the interesting conclusions of the Colorado Supreme Court is the decision that both spouses have equally valid, constitutionally based interest in procreational autonomy. As demonstrated by the dissent, and most of the other U.S. embryo disposition cases out there, that is not a universally held truth. The dissent would have preferred the different, “contemporaneous mutual consent rule” — which requires that either person could object before an embryo is used, and embryos can only be used for procreation if both parties are in agreement at the time. The dissent argues that non-use is the natural consequence if the court doesn’t do anything, and that a court stepping in and allowing use against one of the genetic provider’s objections is the government overstepping its power. While the contemporaneous mutual consent rule has had limited traction, the idea that the court should generally favor the party wishing not to reproduce is a popular one. But the Colorado Supreme Court declined to engage in such favoritism.

I spoke with Ms. Rooks’s attorney, Katayoun Donnelly, about the ruling. “In addressing the difficult and fundamentally important issues of procreational autonomy posed in In re Marriage of Rooks, the Colorado Supreme Court both acknowledged the well-established right to be a parent and answered, in the affirmative, the question of whether the Constitution protects a right not to be a genetic parent.” Donnelly, however, took issue with the fact that “the court did not address the analytical framework proposed by Ms. Rooks that provided for a detailed analysis and balancing of each party’s asserted constitutional rights as a genetic, legal, or gestational parent.”

While I am still mulling over all 60 pages, I am starting to like the ruling. I agree that considering financial ability is problematic, and that there are distinct differences between the ability to have a biological child as opposed to adopting a child. Of course, I am still not a big fan of using someone’s genetics against their wishes (whether they are alive or dead). But, of the options, a fair balancing test seems like a reasonable framework for resolving these disputes.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Topics

, , , ,