The Colorado Supreme Court has handed down a decision in Rooks v. Rooks, a controversial Colorado embryo custody case, in which Thomas More Society attorneys filed an important amicus curiae (“friend of the court”) brief. The state high court ruling from October 29, 2018 sends the case back to the lower court with orders about which factors they can and cannot consider about what happens to these cryopreserved offspring of a now-divorced couple.  

The Thomas More Society filed the brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists with the Colorado Supreme Court in support of Petitioner Mandy Rooks, the mother of six cryopreserved babies. The embryos are those remaining in cryogenic storage after in-vitro fertilization procedures. Those procedures allowed Ms. Rooks to deliver a son, and later twins, while married to Drake Rooks, the children’s father. Despite the couple’s divorce, Ms. Rooks wants to keep the babies for future implantation. Her now ex-husband has asked the court to deliver the six embryos to him for destruction.

Both a district court and the Colorado Court of Appeals court awarded custody to Mr. Rooks, but the Colorado Supreme Court ordered a stay of execution for the embryos until a final order is entered in the lawsuit.

Colorado Supreme Court justices upheld the lower court’s “balance of interest” approach, which objectifies the preserved human embryos as marital property in the divorce. However, the high court ruled that some of factors considered by the lower court could not be used to determine who is awarded the embryos, which they class as “marital property of a special character.”

The court specifically addressed three aspects that may not be considered in weighing the parties’ interests, each of which had been improperly addressed by the trial and appellate courts:

• Economic capacity to afford a child
• Prior or currently-existing children
• Ability to adopt a child

The Colorado Supreme Court concluded that because the lower courts considered these inappropriate factors in attempting to balance the divorced couple’s 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.

Attorney Rita Gitchell, Thomas More Society Special Counsel, explained some of the problems with the court’s interpretation of the issue at stake. “These cryogenically preserved children are already developing human beings, even before implantation. Courts are relying on case law extracted from old, out-of-date science, that had not yet understood that the embryo is already fully formed and alive even before he or she is implanted in the womb.”

Gitchell continued: “While it is a simple fact that those who provide an egg and a sperm which unite to become an embryo become genetic parents once they unite, it is not a fact that while the embryos are developing, the parents are ‘becoming genetic parents,’ which would be comparable to suggesting that a woman who is seven months pregnant is ‘becoming pregnant.’ Until the courts or legislatures grasp the facts of created life, the constitutional rights of parents to protect their created offspring will not be protected, nor will the human rights of the embryo be protected. As a result, human embryos are being treated like chattel or property, just like slaves in the pre-abolition era.”

She added: “Regardless of the final outcome of this case, Mr. and Ms. Rooks are forever genetic parents of these created embryos. A court can terminate his or her legal parenthood, but can never terminate the genetic fact that these tiny embryos are their biological children.”

Read the October 29, 2018 Colorado Supreme Court opinion here.

Read the amicus curiae submitted to the Colorado Supreme Court in Rooks v. Rooks by Thomas More Society attorneys on behalf of the American Association of Pro-Life Obstetricians and Gynecologists, here.