We have shared on our blog stories involving custody of frozen embryos, perhaps most famously that of Sofia Vergara. Typically, courts have tried to keep these matters within the confines of contract law and avoid considering the embryos as “children” that fall under the “custody” provisions of state dissolution of marriage statutes. Also, this path of property avoids difficult questions of constitutional law regarding privacy and procreation.
Today, the Colorado Supreme Court will go where no court has seemingly gone before and address the most difficult issue as a matter of constitutional law.
In the case, Mandy Rooks and Drake Rooks chose to undergo in vitro fertilization to have children. They did have three children through this method, and they have remaining frozen embryos consisting of her eggs and his sperm. They eventually filed for divorce and settled every issue but the disposition of the frozen embryos. Drake has made it clear he does not want more children, especially with Mandy. On the other hand, Mandy wants more children and she would consider it murder if the frozen embryos were destroyed.
The case will likely turn on the famous Roe v. Wade case decided in 1973. In that case, the Supreme Court for the first time held that a woman had a right to terminate a pregnancy pre-viability – a right that remains in full force today. But that same right of procreative autonomy for a woman should apply equally to a man under both the Equal Protection Clause and the Fourteenth Amendment Due Process Clause. So, it seems the same case is both sword and shield in this litigation.
Drake’s argument is very clear: if the frozen embryos are not destroyed and Mandy is entitled to use them, Drake will become a father against his will with a person he does not want to be the mother of any further of his offspring. The whole point of Roe is that a woman should not be forced to bring a fetus to term and bear a child against that woman’s will – what we would term forced procreation. Drake argues that giving Mandy the frozen embryos is the equivalent of what Roe prevents.
Mandy takes the position that those who want to see Roe overturned take – that the frozen embryos, as potential life, deserve the status of “personhood” under the Constitution and therefore due process protection. One can only reach this conclusion by in effect overturning the central premise of Roe – that a fertilized ovum does not have constitutional rights greater than the parent pre-viability.
As one can imagine, no one generally wants to head down this road in working out a solution to these cases because it touches on abortion, but Colorado will take this road and make a considered judgment on whether Roe should favor Drake or should be restricted to favor Mandy.
It would seem that existing law supports the argument advanced by Drake, but strange developments happen in the law every day. Regardless of the outcome, deciding this case as a matter of federal constitutional law gives the Supreme Court the opportunity to ultimately weigh in should it choose to take the case down the line.
We will keep you updated when a decision comes down.
If you have questions about custody of frozen embryos in divorce, contact us – we can help.