Who is entitled to custody of a divorced couple’s frozen embryos following a divorce? On October 29, 2018, the Colorado Supreme Court set forth new guidelines to determine such custody rights in the case In re Marriage of Rooks, 2018 CO 85, No. 16SC906.
Mandy and Drake Rooks dissolved their 12-year marriage in 2014, after having three children together using in vitro fertilization. Six embryos remained in cryo-storage, as the couple planned to have four children. Because Mandy believed the embryos were her last chance to have a biological child, she fought for their custody in a case that seemed to pit an individual’s right to reproduce against an individual’s right to avoid reproduction.
Meanwhile, Drake said he did not want to parent any more children with his ex-wife and asked that the embryos be destroyed. Both a district court and the Colorado Court of Appeals awarded the embryos to him.
Rather than fashion a broad rule, the Colorado Supreme Court opted to weigh each party’s rights on a case by case basis: “The framework that we adopt today recognizes that both spouses have equally valid, constitutionally based interests in procreational autonomy.” The Court further “encourages couples to record their mutual consent regarding the disposition of remaining pre-embryos in the event of divorce by an express agreement.”
In the absence of such foresight, as in the Rooks’ case, the Court held:
“…courts should seek to balance the parties’ respective interests in receipt of the pre-embryos. In balancing those interests, courts should consider the intended use of the party seeking to preserve the pre-embryos; a party’s demonstrated ability, or inability, to become a genetic parent through means other than use of the disputed pre-embryos; the parties’ reasons for undertaking in vitro fertilization in the first place; the emotional, financial, or logistical hardship for the person seeking to avoid becoming a genetic parent; any demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce process; and other considerations relevant to the parties’ specific situation.”
At the same time, Courts should NOT consider whether the party seeking to become a genetic parent using the pre-embryos can afford a child; the sheer number of a party’s existing children, standing alone; as well as whether the party seeking to become a genetic parent using the pre-embryos could instead adopt a child or otherwise parent non-biological children.
Thus, the Court of Appeals’ decision was reversed with instructions to apply this new balancing framework.
Please contact the Domestic Team and Feldmann Nagel Cantafio Margulis, PLLC, PLLC for all of your family law needs.