During three emotional days of divorce talks, Drake and Mandy Rooks managed to agree on how to divide up almost every aspect of their old lives down to the last piece of furniture. Only one thing remained: the frozen embryos.
There were six of them, created from his sperm and her eggs, and they had been left over from when the couple had gone through in vitro fertilization some years earlier.
The couple had had three children using the technology, and Drake was done. He 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 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.
On Tuesday, the Colorado Supreme Court will hear oral arguments in the Rookses’ case. Although several other cases have made their way to states’ high courts, legal experts say the issues here are different.
“Constitution questions are front and center in a way that they have not been in the other cases,” said Harvard law professor 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.”
The rapidly expanding world of assisted reproduction has triggered ever-more-complex legal fights, with disputes over parental rights and custody front and center.
Among the most high-profile is that of actress Sofia Vergara and her ex-fiance, Nick Loeb, who created two embryos when they were engaged in 2013. Loeb has said he wants to see them brought to term, while Vergara, who is married to someone else, wants them to remain frozen. The case of Silicon Valley investor Stephen Findley and his former wife, Mimi Lee, involved her wanting to use the embryos when she became infertile after breast cancer. A California judge sided with Findley that the embryos should be thawed and discarded.
When they met through mutual friends, Drake Rooks was a police officer and Mandy Rooks a nurse. They married in 2002 and settled in the small town of Glenwood Springs, just south of Aspen. Years later, with the help of in vitro fertilization, they had a baby boy and then boy-girl twins. But their relationship began to fall apart only a few months after the twins were born, leading to a very messy divorce.
The court, recognizing both as loving parents, awarded them joint legal custody. 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.
Attorney Katayoun 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 divorceand 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.
As the case has continued through the judicial system, several other parties have weighed in.
The Thomas More Society, writing in support of Mandy, has asserted the “personhood” of the embryos and their rights, saying that what is actually at stake is the termination of a human life or the continuation of that life.
Other briefs have supported Drake’s position. The state chapter of the American Academy of Matrimonial Lawyers wrote that “no one should force procreation over the objection of a progenitor.” Likewise, the Academy of Adoption and Assisted Reproductive Attorneys said Colorado’s courts must take a “balancing of interests” approach in such disputes but give special weight to the partner who does not want to have genetic offspring.”
“In these cases, the parties do not have equal claims: the constitutional protection against compulsory parenthood is in most situations greater than any procreative interest in pre-embryos,” attorneys Christopher Jackson and Seth Grob wrote. According to them, the 14th Amendment protects the rights of the individual to make his or her own decisions on whether to have a child. “Plainly, this includes the right not to have a child.”
Cohen, the law professor, said that even with a strong contract or state statute with details of assisted reproduction, the outcome of a dispute hasn’t been certain. In some cases, courts have made exceptions for individuals who had an unexpected loss of fertility because of a medical diagnosis. And some courts have considered how many other children the person has.
In Mandy Rooks’ case, her attorneys argued in the initial trial that it was their understanding she couldn’t have more children. But last April, they reported in a filing to the Colorado Supreme Court that she was again pregnant. They gave no details on the father or whether IVF or other reproductive technology was involved, and Donnelly refused last week to answer questions on that.
“It’s quite messy still, after even more than 25 years of litigation on this question,” Cohen said. “We still we have a patchwork of state approaches, a patchwork on how you think and how you reason about them, and a patchwork of results.”