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Frozen Embryos and Divorce: Court Offers New Guidelines for Custody Rights

By William Vogeler, Esq. | Last updated on

Cryogenic rights, procreational autonomy, and embryo embargo are not the usual issues in divorce court.

In a landmark Colorado case, the Colorado Supreme Court tried to address them. A divided court resolved the questions for a divorcing couple, and offered guidelines for others.

In a futuristic world, it's not likely to be the last word in the field. However, at least there are some new terms.

Procreational Autonomy

Mandy and Drake Rooks had three children by in vitro fertilization, and stored six embryos cryogenically. After 12 years of marriage, they divorced.

In re Marriage of Rooks, the couple fought over the rights to the embryos. Mandy wanted them to have another child; Drake sought to destroy them because he didn't want another child with his ex-wife.

A trial judge and an appeals court awarded the embryos to him. The state supreme court applied a balancing test and reversed.

"The framework that we adopt today recognizes that both spouses have equally valid, constitutionally based interests in procreational autonomy," wrote Justice Monica Marquez.

Embryo Embargo

Marquez said the court must consider:

  • Why a party wants to preserve the embryos
  • Why they were frozen in the first place
  • What burdens would be placed on the opposing party
  • Whether a party tries to gain some leverage with the embryos

Three justices dissented. They said the parties should keep the frozen embryos in storage until they reach a mutual decision about their disposition.

Reversing the appeals court that said the embryos should be destroyed, the Colorado Supreme Court awarded them to Mandy Rooks.

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